Volume 18, edition 2, cases

CSX TRANSPORTATION, INC., Plaintiff, v. GENERAL MILLS, INC., Defendant.

United States District Court,

N.D. Georgia,

Atlanta Division.

CSX TRANSPORTATION, INC., Plaintiff,

GENERAL MILLS, INC., Defendant.

Civil Action File No. 1:14–CV–201–TWT. | Signed Feb. 3, 2015.

Attorneys and Law Firms

Ana Davis Johnson, David Matthew Wells, Gunster, Yoakley & Stewart, P.A., Jacksonville, FL, Christopher R. Jordan, Grant Cox Buckley, Karen Jenkins Young, R. Stan Baker, The Jordan Firm, Randall A. Jordan, Jordan & Moses, St. Simons Island, GA, Eileen Margaret Crowley, Hall, Bloch, Garland & Meyer, LLP, Atlanta, GA for Plaintiff.

Emily Ann Ambrose, Jerry W. Blackwell, Mary S. Young, Blackwell Burke P.A., Minneapolis, MN, Catherine Ann McCormack, Hawkins Parnell Thackston & Young, LLP, Atlanta, GA for Defendant.

OPINION AND ORDER

THOMAS W. THRASH, JR., District Judge.

*1 This is a breach of contract action. The Plaintiff CSX Transportation, Inc. is claiming that the Defendant General Mills, Inc. is contractually obligated to indemnify the Plaintiff for a judgment entered against the Plaintiff in a personal injury action. It is before the Court on the Defendant General Mills, Inc.’s Motion to Dismiss [Doc. 23]. For the reasons set forth below, the Defendant’s Motion to Dismiss [Doc. 23] is GRANTED.

I. Background

This case arises out of a workplace accident in which Douglas Burchfield—a General Mills employee—sustained personal injuries. The relevant facts are as follows. The Plaintiff CSX Transportation, Inc. provides rail transportation services in multiple areas, including Covington, Georgia.1 The Plaintiff entered into a contract (the “Agreement”) with the Defendant, General Mills, Inc., where the former agreed to construct a private sidetrack—a railroad track connected to a main track—for rail freight traffic to and from the Defendant’s Covington, Georgia cereal processing plant.2

The Agreement also grants the Defendant the right to conduct “switching”—the process of moving and assembling railcars so that they can be coupled to a locomotive and shipped away—on a portion of the sidetrack.3 Because the Plaintiff was not conducting all of the switching operations, the parties included a specific liability provision concerning switching (“Section 15”):

[General Mills] shall have the right to switch with its own trackmobile … over [General Mills’] Segment of the Sidetrack…. [I]n consideration therefor, [General Mills] assumes all risk of loss, damage, cost, liability, judgment and expense (including attorneys’ fees) in connection with any personal injury to … any persons … that may be sustained or incurred in connection with, or arising from or growing out of, the operation of [General Mills’] trackmobile … upon said Sidetrack.4

This case concerns a switching operation performed on an AEX 7136 railcar. The Star of the West Milling (“Star”) Co.—an agricultural company based in Frankenmuth, Michigan—shipped grain to the Defendant’s Covington facility using an AEX 7136 railcar, which it leased from The Andersons, Inc.5 On the day of the incident, Burchfield and a fellow employee, Rodney Turk, were using a trackmobile—a railcar mover—to “switch” certain railcars, including Star’s AEX 7136.6 Turk, in particular, was operating the trackmobile.7 After Turk and Burchfield moved the AEX 7136 onto a holding track, they uncoupled it from the trackmobile and then proceeded to move another railcar located on a part of the sidetrack farther downhill.8 Then, after Burchfield had exited the trackmobile, the AEX 7136 rolled down the track and collided with the trackmobile.9 As a result, both railcars and the trackmobile struck Burchfield, causing significant personal injuries .10

On June 1, 2007, Burchfield brought suit against the Plaintiff, asserting a negligence claim.11 Ultimately, Burchfield secured a jury verdict in his favor for $20,559,004.12 The jury found that Burchfield was “0% negligent as compared to the 100% negligence of [CSX].”13 Both parties appealed the final judgment entered pursuant to the jury award,14 and then participated in court-mandated mediation where they finally agreed to a settlement amount of $16,000,000.15 The Plaintiff paid this amount in full.16 The Plaintiff then demanded indemnification from the Defendant under the Agreement, and the latter refused.17 Consequently, the Plaintiff filed suit against the Defendant, asserting a claim for breach of contract. The Defendant now moves to dismiss.

II. Legal Standard

*2 A plaintiff may survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6) if the factual allegations in the Complaint give rise to a plausible claim for relief.18 For a claim to be plausible, the supporting factual matter must establish more than a mere possibility that the plaintiff is entitled to relief.19 In determining whether a plaintiff has met this burden, the Court must assume all of the factual allegations in the Complaint to be true. The Court, however, need not accept as true any legal conclusions found in the Complaint.20

III. Discussion

In moving to dismiss, the Defendant makes two arguments: (1) the Agreement does not require the Defendant to indemnify the Plaintiff for the damages the latter paid to Burchfield, and (2) if the Agreement does require such indemnity, it is inconsistent with Georgia public policy, and thus void. The Court’s analysis begins—and ends—with the first argument.

Under Georgia law, when interpreting a contract the Court must first “decide whether the language is clear and unambiguous.”21 If it is, then that concludes the matter.22 However, “if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity.”23 If “the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.”24 The “construction of a contract is a question of law for the courts … as is the existence or nonexistence of an ambiguity in a contract.”25 Additionally, in the context of an indemnity contract, the Court must construe “the words … strictly against the indemnitee.”26

Here, two provisions of the Agreement are relevant to the Court’s analysis. Section 11—the Agreement’s general indemnity provision—states:

Except as otherwise provided herein, any and all damages, claims … causes of action suits … judgments and interest whatsoever … in connection with injury to … any person … including employees … of the parties … arising out of or resulting directly or indirectly from the … use … of the Sidetrack shall be divided between the parties as follows:

(A) Each party shall indemnify and hold the other party harmless from all losses arising from the indemnifying party’s willful or gross negligence, its sole negligence and/or its joint or concurring negligence with a third party.

(B) The parties agree to jointly defend and bear equally between them all losses arising from their joint or concurring negligence.27

Thus, Section 11 generally defines each party’s liability, but clarifies that other provisions in the Agreement may provide for different obligations in different circumstances. As noted above, Section 15—which addresses “switching”—includes a separate, independent liability provision:

[General Mills] shall have the right to switch with its own trackmobile … over [General Mills’] Segment of the Sidetrack…. [I]n consideration therefor, [General Mills] assumes all risk of loss, damage, cost, liability, judgment and expense … in connection with any personal injury … that may be sustained or incurred in connection with, or arising from or growing out of, the operation of [General Mills’] trackmobile … upon said Sidetrack.28

*3 The Plaintiff argues that, under Section 15, the Defendant must indemnify the Plaintiff for any judgment entered against the Plaintiff based on an injury arising out of the Defendant’s switching operations—even if the Plaintiff’s negligence caused the injury. In response, the Defendant points out that—under Georgia law—for a contract to provide for indemnification for losses stemming from the indemnitee’s negligence, the contract must meet a heightened specificity requirement. The Defendant argues that, despite its broad terms, Section 15 does not meet this requirement. The Court agrees with the Defendant, and concludes that Section 15 of the Agreement does not require the Defendant to indemnify the Plaintiff for a judgment where the latter, but not the former, was found negligent.

Georgia courts have made clear that “[u]nless a contract for indemnification explicitly and expressly states that the negligence of the indemnitee is covered, courts [may] not interpret such an agreement as a promise to save the indemnitee from his own negligence.”29 Thus, the Plaintiff’s reading is correct only if the Agreement “expressly, plainly, clearly, and unequivocally state[s] that [the Defendant must] indemnify the [Plaintiff] from the [Plaintiff’s] own negligence.”30 Thus, generally, “where the parties fail to refer expressly to negligence in their contract such failure evidences the parties’ intention not to provide for indemnity for the indemnitee’s negligent acts.”31 According to Georgia courts, the policy behind this interpretive rule “is to assure that people exercise due care in their activities for fear of liability, rather than act carelessly in the knowledge that indemnity insurance will relieve them.”32 In addition, “[p]ublic policy is reluctant to cast the burden of negligent actions upon those who are not actually at fault .”33

Here, Section 15 does not “expressly, plainly, clearly, and unequivocally” state that the Defendant must indemnify the Plaintiff for a judgment stemming from the latter’s negligence. Although Section 15 uses broad terms to describe the risk assumed by the Defendant34—e.g., “[General Mills] assumes all risk of loss … in connection with any personal injury”35—Georgia courts have routinely found that such broad terms are not, in themselves, sufficient. For example, in Southern Railway Company v. Union Camp Corporation,36 an employee of Southern was injured while placing a cart onto railroad tracks located on Southern’s property. The cart was supposed to be sent to Union’s property for use in performing maintenance on Union’s tracks. An agreement between Southern and Union stated: “[Union] … agrees to indemnify [Southern] against all loss, damage, liability or expense which it may incur or for which it may become liable because of … any injury to … any person … which occurs during or as a result of the maintenance of said tracks by [Southern].”37 The employee sued Southern, and Southern filed a third-party complaint against Union claiming that, under their agreement, Union “is contractually obligated to indemnify [Southern] in the event that it is found liable to [the employee].”38 Despite the broad terms of the indemnity clause, the court nonetheless found that it did not “expressly state[ ] that the negligence of the indemnitee is covered.”39 Likewise, in Park Pride Atlanta, Inc. v. City of Atlanta,40 a volunteer participating in a “park beautification project” was killed after a parked truck rolled backwards and struck her. The truck belonged to the City of Atlanta and was being operated by a City employee (the “driver”) who forgot to set the brakes.41 The victim’s executor brought suit against several parties, including the City and the driver.42 The City and the driver settled the case with the victim’s executor, and then brought suit against Park Pride Atlanta—“a nonprofit organization that coordinated volunteers to beautify City parks”43—seeking indemnification.44 The indemnification claim was based on a contract provision which stated: “Park Pride agrees to … hold harmless the City, its officers, agents and employees, from any and all claims, … actions, … suits, damages, loss and expense of any kind … to any person … for any activity sponsored by or coordinated by Park Pride.”45 In rejecting the indemnification claim, the court reasoned: “[a]lthough the sweep of this indemnification wording may initially appear to indemnify the City ‘against any and all claims,’ this language is bereft of any express or explicit statement about coverage for the City’s own negligent acts or omissions done by the City’s own employees.”46 Similarly, here, although Section 15 uses broad terms, it does not expressly speak to the issue of indemnification and losses arising from the Plaintiff’s negligence.

*4 In response, the Plaintiff first argues that the Defendant’s reading of Section 15 would render it meaningless.47 According to the Plaintiff, if Section 15 does not provide for indemnification for judgments stemming from the Plaintiff’s negligence, then it provides no greater protection than that provided by Section 11.1(B), which states: “[t]he parties agree to jointly defend and bear equally between them all losses arising from their joint or concurring negligence.”48 This is incorrect. Even under the Defendant’s reading, Section 15 would still have an effect independent of Section 11.1(B). For example, if both the Plaintiff and the Defendant had been found negligent, Section 15 would have allowed the Plaintiff to seek full indemnification. To be sure, the Georgia Court of Appeals has stated that a contract need not satisfy the heightened specification requirement in order to provide full indemnification when the indemnitor is also at fault:

[A]lthough language in an agreement may not be sufficiently explicit to indemnify the indemnitee against liability resulting strictly from its own negligence alone, such less than explicit language may be sufficient to require indemnification for damages resulting from the combination of the indemnitee’s negligence and the indemnitor’s negligence. … Applying this principle, … where … an indemnification clause requires indemnification of losses that ‘arise out of’ certain specified events but does not explicitly mention the indemnitee’s negligence, the clause still requires full indemnification although the indemnitee’s negligence may have partially caused the loss.49

Thus, Section 15 carves out an exception to Section 11.1(B) because the latter generally requires the parties to share the liability when they are both found negligent. Additionally, Section 15 has another effect: it serves as a liability waiver by the Defendant. Under Section 15, the Defendant is not allowed to seek damages from the Plaintiff—even if the Plaintiff was solely negligent—for any injury arising out of the Plaintiff’s switching operations. Thus, contrary to the Plaintiff’s assertion, the Defendant’s interpretation of Section 15 does not render it meaningless.

The Plaintiff then argues that the negligence of a third party—e .g., The Andersons—may have contributed to the accident.50 But the Plaintiff fails to explain why this is relevant. To the extent that the Plaintiff is arguing that a contract need not satisfy the heightened specificity requirement in order to provide for indemnification when the indemnitee is found jointly negligent with a third party, the Plaintiff cites to no case in support.51 In fact, Georgia courts have consistently stated—in general terms—that the requirement applies any time a party is seeking indemnification for losses arising out of its own negligence.52 Thus, even assuming that a third party’s negligence contributed to the accident, the Plaintiff would not be entitled to indemnification unless the Agreement expressly and unequivocally provided for it. As already explained, it does not.

*5 In a final effort, the Plaintiff briefly argues that it may still be entitled to indemnification because the Burchfield judgment did not necessarily stem from the Plaintiff’s negligence.53 In particular, the Plaintiff asserts that the claim in Burchfield was based on a violation of the Federal Safety Appliance Act (“FSAA”), which is a strict liability offense.54 Thus, according to the Plaintiff, the jury’s award was not based on a finding that the Plaintiff was negligent. This is incorrect. To be clear, the FSAA does not create a private right of action.55 Thus, Burchfield asserted a standard state-law negligence claim, and he simply argued that showing an FSAA violation would conclusively establish the Plaintiff’s negligence.56 In returning a verdict for Burchfield, the jury expressly found that the Plaintiff was negligent, and that Burchfield was not.57 It is immaterial that the jury may have reached this conclusion after finding an FSAA violation. Thus, the judgment against the Plaintiff was based on its negligence, and so the Plaintiff may not seek indemnification for that judgment under the Agreement.

IV. Conclusion

For these reasons, the Court GRANTS the Defendant General Mills, Inc.’s Motion to Dismiss [Doc. 23].

SO ORDERED.

Footnotes

Compl. ¶ 5.

Compl. ¶¶ 7–8.

Compl. ¶ 10.

Compl., Ex. A.

Compl. ¶ 24.

Compl. ¶ 26.

Compl. ¶¶ 27, 29.

Compl. ¶ 29.

Compl. ¶ 30.

Compl. ¶ 38.

Compl. ¶ 45.

Jury Verdict at 1, Burchfield v. CSX Transportation, Inc. et al., No. 1:07–cv–1263–TWT (N.D.Ga. Apr. 19, 2012), ECF No. 710.

Compl. ¶ 47.

Compl. ¶ 50.

Compl. ¶ 52.

See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level … on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”).

See Iqbal, 556 U.S. at 678.

See id.; Twombly, 550 U.S. at 555 (A “plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”) (internal quotation marks omitted).

CareAmercia, Inc. v. Southern Care Corp., 229 Ga.App. 878, 880, 494 S.E.2d 720 (1997).

See id. (“If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.”).

Id.

Avion Systems, Inc. v. Thompson, 293 Ga.App. 60, 62–63, 666 S.E.2d 464 (2008).

Service Merchandise Co. v. Hunter Fan Co., 274 Ga.App. 290, 292, 617 S.E.2d 235 (2005).

Compl., Ex. A (emphasis added).

Park Pride Atlanta, Inc. v. City of Atlanta, 246 Ga.App. 689, 690, 541 S.E.2d 687 (2000) (emphasis added).

Id. at 691, 541 S.E.2d 687 (emphasis added); see also McMichael v. Robinson, 162 Ga.App. 67, 69, 290 S.E.2d 168 (1982) (“The general rule in this state is that express indemnity contracts are to be strictly construed and that an understanding purporting to indemnify or hold harmless the indemnitees’ sole acts of negligence are void as being against public policy in the absence of plain, clear and unequivocal language by the indemnitor accepting the indemnitees’ negligence as its own.”) (emphasis added).

Batson–Cook Co. v. Georgia Marble Setting Co., 112 Ga.App. 226, 230, 144 S.E.2d 547 (1965) (internal quotation marks omitted).

Allstate Ins. Co. v. City of Atlanta, 202 Ga.App. 692, 693, 415 S.E.2d 308 (1992).

Ryder Integrated Logistics Inc. v. BellSouth Telecommunications, Inc., 281 Ga. 736, 737, 642 S.E.2d 695 (2007).

Pl.’s Resp. Br., at 9 (“Section 15.1 requires no finding of fault to allocate responsibility; it imposes absolute liability on GM for all risk of loss incurred in connection with or arising out of one specific activity: industry switching by GM on the GM portion of the sidetrack.”).

Compl., Ex. A (emphasis added).

181 Ga.App. 691, 353 S.E.2d 519 (1987).

Id. at 692, 353 S.E.2d 519 (emphasis added).

Id. at 691, 353 S.E.2d 519.

Id. at 692, 353 S.E.2d 519 (emphasis added).

246 Ga.App. 689, 541 S.E.2d 687 (2000).

See id.

Id. at 689 n. 2, 541 S.E.2d 687.

See id. at 691, 541 S.E.2d 687.

Id.

Pl.’s Resp. Br., at 10 (“To read Section 15 to limit GM’s liability for losses arising from the operation of the trackmobile to only those where GM is at least partially negligent would render Section 15 meaningless.”).

Compl., Ex. A.

Lawyers Title Ins. Corp. v. New Freedom Mortgage Corp., 288 Ga.App. 642, 647–48, 655 S.E.2d 269 (2007) (emphasis added); see also George R. Hall, Inc. v. Superior Trucking Co., 532 F.Supp. 985, 993 (N.D.Ga.1982) (“[C]ourts will be more willing to find indemnity in favor of a negligent indemnitee when the indemnitor is also negligent.”).

Pl.’s Resp. Br., at 22–23.

However, as noted earlier, Georgia courts have carved out an exception for when the indemnitor—rather than a third party—is at least partially at fault. See Lawyers Title, 288 Ga.App. at 647–48, 655 S.E.2d 269; George R. Hall, Inc., 532 F.Supp. at 993.

See, e.g., BBL–McCarthy, LLC v. Baldwin Paving Co., 285 Ga.App. 494, 500, 646 S.E.2d 682 (2007) (“[I]t is well established in Georgia that contractual indemnities do not extend to losses caused by an indemnitee’s own negligence unless the contract expressly states that the negligence of the indemnitee is covered.”) (internal quotation marks omitted) (emphasis added); Gough v. Lessley, 119 Ga.App. 275, 277, 166 S.E.2d 893 (1969) (“[P]arties may validly provide for indemnity of the indemnitee for the latter’s own future acts of negligence, provided the intention to indemnify the indemnitee for its own negligence be expressed plainly, clearly and unequivocally in sufficiently specific words.”) (emphasis added).

Pl.’s Resp. Br., at 23.

Pl.’s Resp. Br., at 23–25.

See Crane v. Cedar Rapids & I.C. Ry. Co., 395 U.S. 164, 166, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969) (“The Safety Appliance Act did not create a federal cause of action for … nonemployees seeking damages for injuries resulting from a railroad’s violation of the Act … [and so] the nonemployee must look for his remedy to a commonlaw action in tort … [and] implement a state cause of action.”).

See Burchfield v. CSX Transp., Inc., No. CIVA.107–CV–1263–TWT, 2009 WL 1405144, at *6 (N.D.Ga. May 15, 2009) (“[T]he Plaintiff’s case must be brought as a state common law claim … [and][i]n Georgia, a personal injury resulting from a violation of the Safety Appliance Act constitutes negligence per se.” ).

See Jury Verdict at 1, Burchfield v. CSX Transportation, Inc. et al., No. 1:07–cv–1263–TWT (N.D.Ga. Apr. 19, 2012), ECF No. 710.

Shawn I. DOLAND, Plaintiff v. Luis BERRIOS, Comstar Enterprises, Inc., Bwaabi Amajuwon and FAF, Inc., Third–Party Plaintiffs/Defendants.

M.D. Pennsylvania.

Shawn I. DOLAND, Plaintiff

Luis BERRIOS, Comstar Enterprises, Inc., Bwaabi Amajuwon and FAF, Inc., Third–Party Plaintiffs/Defendants.

New Penn Motor Express, Inc., Theodore Mrkonja, Timothy Frederick, Gaillard Stroye, Greater Omaha Express, LLC, Adonius Shores, and Taylor Xpress Third–Party Defendants.

Civil No. 1:11–CV–1783. | Signed Feb. 3, 2015.

Attorneys and Law Firms

Kevin Weinstein, Christopher T. Moyer, Master, Weinstein, Schnoll & Dodig, P.C., Philadelphia, PA, for Plaintiff.

Wade D. Manley, Johnson, Duffie, Stewart & Weidner, Lemoyne, PA, Michael T. Traxler, Rawle & Henderson LLP, Harrisburg, PA, Third–Party Plaintiffs/Defendants.

John E. Salmon, Zachary J. Ballard, Salmon, Ricchezza, Singer & Turchi, LLP, Robert P. Corbin, German, Gallagher & Murtagh, Philadelphia, PA, Gregory S. Hirtzel, Fowler, Hirtzel, McNulty & Spaulding, LLP, Lancaster, PA, Timothy J. McMahon, Marshall, Dennehey, Warner, Coleman & Goggin, Harrisburg, PA, for Third–Party Defendants.

MEMORANDUM OPINION AND ORDER

MARTIN C. CARLSON, United States Magistrate Judge.

I. Statement of Facts and of the Case

*1 This case arises out of a February 26, 2010, snowbound chain reaction multi-vehicle accident on Interstate 76 in Cumberland County, Pennsylvania. On February 26, 2010, during a snow storm on the Pennsylvania Turnpike, a tractor-trailer operated by Robert Smith, who was then employed by CRST collided with a tractor trailer operated by Carlos Sheppard. Another tractor-trailer, owned by WFM and operated by Allen Kauffman, then struck the CRST tractor trailer. Observing the accident ahead of him, Galliard Stroye, operating a Greater Omaha Express tractor trailer, came to a halt in the left hand lane of the turnpike. A tractor trailer owned by New Penn Motor Express, Inc., and operated by Timothy Frederick, also came to a stop in the right hand lane of the turnpike, along side the Greater Omaha Express truck. Frederick’s New Penn tractor trailer was then struck from behind by a second New Penn tractor trailer operated third party defendant, Theodore Mrkonja. The force of this collision caused the New Penn vehicles to slide to their left and third party defendant Frederick’s vehicle struck the Omaha Express tractor trailer which was along side it.

In the meanwhile, several vehicles had come to a sudden stop immediately behind the Omaha and New Penn trucks in the left hand lane of the turnpike. These vehicles included an automobile operated by the plaintiff, Shawn Doland, a second automobile, and a tractor trailer owned by Taylor Xpress Lines, inc., and operated by Adonius Shore. In a matter of minutes, these vehicles became embroiled in yet another series of chain reaction accidents when Luis Berrios, operating a tractor trailer owned by Comstar Enterprises, Inc., struck the Taylor Xpress tractor trailer, forcing it into the cars stopped in front of that truck. Within seconds, yet another collision occurred when Bwaabi Amajuwon, who was driving a tractor trailer owned by FAF, Inc., collided with the rear of Berrios’ truck, forcing it into the vehicles in front of it in a chain reaction fashion.

This Palsgrafian1 proximate cause scenario led to the instant litigation. As part of this litigation on March 12, 2012, a third party complaint was served by Defendants/Third Party Plaintiff Berrios and Comstar upon Taylor Xpress by certified mail at that company’s business address, 1516 S. Wabash Avenue, Apt. 206, Chicago, Illinois. The mail delivery receipt was signed by Rosana Taylor.

Twenty months then passed without Taylor Xpress taking the slightest action to defend this lawsuit in federal court or question the adequacy of this service of process. After this prolonged period of complete inaction on Taylor’s part, on November 5, 2013, Berrios and Comstar moved for the entry of a default judgment against Taylor. Default was then entered against this third party defendant on November 6, 2013.

Another year then passed without any action by Taylor to litigate this case, or address it prior defaults in this litigation. Finally, on November 25, 2014, 32 months after service of the third party complaint and more than one year after entry of default, Taylor filed a motion to reopen this case. (Doc. 156.) In its motion to reopen, Taylor alleged for the first time and in a summary fashion that initial service of process was improper because Rosana Taylor was not was an officer of Taylor Xpress authorized to accept service. Taylor then asserted without any further elaboration that it had belatedly determined that it has some currently unidentified defenses to this litigation, and sought to set aside its defaults over the past three years. (Id.)

*2 Berrios and Comstar have responded to this motion to reopen default judgment in a compelling fashion, providing evidence supporting the sufficiency of its service of process upon Taylor Xpress through Rosana Taylor. Specifically, Berrios and Comstar have presented evidence showing that Rosana Taylor was the Vice President of Taylor Xpress; was the co-owner of the property listed at 1516 Wabash Avenue which was designated at the business address of Taylor Xpress; was apparently related to Dachon Taylor, the President of Taylor Xpress by blood or marriage; and had held herself out as the Fleet Manager for Taylor Xpress, a position that entailed wide-ranging supervisory responsibilities at that company. (Doc. 158.)

Presented with this compelling proof, Taylor Xpress has elected not to dispute in any fashion the averments made by Berrios and Comstar. Thus, Taylor Xpress has not filed any reply brief in support of its motion to reopen, and the time for filing a reply brief has now passed. Therefore, we will consider this motion in light of the unrebutted factual averments made by Berrios and Comstar.

On these uncontested facts, Taylor Xpress’ motion to reopen default will be denied.

II. Discussion

A. Default MotionsStandard of Review

Default judgments are governed by Rule 55 of the Federal Rules of Civil Procedure. Under Rule 55 a default judgment may only be entered when the party against whom the default judgment is sought was served and “has failed to plead or otherwise respond.” Rule 55(a), F.R.Civ.P. Furthermore, in ruling upon requests relating to default judgments it is well-settled that these decisions are:

[L]eft primarily to the discretion of the district court. Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir.1951). We recognize, however, that this Court does not favor entry of defaults or default judgments. We require doubtful cases to be resolved in favor of the party moving to [deny or] set aside the default judgment “so that cases may be decided on their merits.” Id. at 245. See also Gross v. Stereo Component Systems, Inc., 700 F.2d 120, 122 (3d Cir.1983); Feliciano v. Reliant Tooling Company, Ltd., 691 F.2d 653, 656 (3d Cir.1982); Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir.1982). Nevertheless, we do not [deny or] set aside the entry of default and default judgment unless we determine that the district court abused its discretion. We require the district court to consider the following factors in exercising its discretion …:(1) whether the plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; (3) whether the default was the result of the defendant’s culpable conduct. Gross v. Stereo Component Systems, Inc., 700 F.2d at 122; Feliciano v. Reliant Tooling Company, Ltd. ., 691 F.2d at 656; Farnese v. Bagnasco, 687 F.2d at 764. United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194–95 (3d Cir.1984).

*3 In this case, in the exercise of our discretion we find that Taylor’s belated motion to reopen this default judgment should be denied. In reaching this conclusion, we note at the outset that we reject Taylor’s tardy assertion that service of process was improper. In this regard, Rule 4 of the Federal Rules of Civil Procedure prescribes the manner in which service of process should be made. Under Rule 4(h), “a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served: (1) in a judicial district of the United States: (A) in the manner prescribed by Rule 4(e)(1) for serving an individual.” Fed.R.Civ.P. 4(h). Rule 4(e)(1), in turn, provides that a party “may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located.” Fed.R.Civ.P. 4(e)(1). The Pennsylvania Rules of Civil Procedure then permit service through the mails, but impose certain specific requirements upon that service stating that: “a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent.” Pa. R. Civ. P. 403.

Recognizing that “the party asserting the validity of service bears the burden of proof on that issue See 4A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1083 (1987),” Grand Entertainment Group, Ltd. v. Star Media Sales, Inc. ., 988 F.2d 476, 488 (3d Cir.1993), here we find that Berrios and Comstar have established proper service on Taylor Xpress. That service was made by certified mail in accordance with state practice upon the co-owner of the business property, someone who has been identified as a corporate vice president, and an individual who has described herself as the Fleet Manager for Taylor Xpress, a position that entailed wide-ranging supervisory responsibilities at that company. (Doc. 158.) In our view, such service of process upon a corporate vice president at the corporate business address-factual averments which are unrebutted by Taylor-is adequate to effect service on the corporation. Trump Taj Mahal Associates v. Hotel Servs., Inc., 183 F.R.D. 173, 175 (D.N.J.1998).

Finding that service of process was proper here, we note that reopening this default judgment at this late date would be highly prejudicial to the other parties in this litigation, who have completed discovery, conducted protracted motions practice, and have engaged in extended and extensive mediation efforts in this litigation. Thus, the first of the benchmarks we must examine, the prejudice to the remaining parties in the litigation, weighs heavily against reopening this case at this late date.

Similarly, the third factor we must consider—whether the default was the result of the defendant’s culpable conduct—also weighs heavily against Taylor. Almost three years have now elapsed since Taylor was served and more than a year has passed since default was entered against Taylor in this lawsuit. Even at this late date, Taylor provides no explanation for its failure to address this litigation in a timely and responsible fashion, beyond its belated and factually discredited claims regarding adequacy of service of process, a matter which should have been addressed at a minimum in November of 2013, when Berrios and Comstar moved for default. In short, this case presents paradigm of culpable inaction on the part of Taylor Xpress, inaction which spans years and constitutes yet another factor which favors denial of this motion to reopen.

*4 The sole remaining factor we must consider, then, is whether the defendant has a meritorious defense. While Taylor contends that it has such a defense, it has not shared that defense with the Court. Therefore, we are at a loss to determine what weight, if any, this factor actually deserves. We note, however, that joinder of Taylor Xpress as a third-party defendant seems appropriate here, since pursuant to Rule 14(a) of the Federal Rules of Civil Procedure, a defending party may join a nonparty “who is or may be liable to it for all or part of the claim against it.” Fed.R.Civ.P. 14(a). The district court has the discretion to permit joinder. See Morris v. Lenihan, 192 F.R.D. 484, 487 n. 3 (E.D.Pa.2000). A third-party plaintiff may use Rule 14(a) to implead a third-party defendant only if the proposed third-party defendant may be liable to the third-party plaintiff derivatively or secondarily. See Naramanian v. Geyhound Lines, Inc., Civ. A. No. 07–CV–4757, 2010 U .S. Dist. LEXIS 121145, 2010 WL 4628096, at *2 (E.D.Pa. Nov.15, 2010) (citing FDIC v. Bathgate, 27 F.3d 850, 873 (3d Cir.1994)). Thus, joinder is not available when a defendant seeks to join a third party who may only be liable to the plaintiff. Id. In order to prevail on a motion to join a third-party defendant, a third-party plaintiff must demonstrate some substantive basis for its claim against the proposed third-party defendant. Pitcavage v. Mastercraft Boat Co., 632 F.Supp. 842, 845 (M.D.Pa.1985) (citing Robbins v. Yamaha Motor Corp., U.S.A., 98 F.R.D. 36 (M.D.Pa.1983)).

If a court finds that these requirements have been satisfied, “motions for joinder should be freely granted to effectuate the purposes of the impleader rules.” Hartford Cas. Ins. Co. v. ACC Meat Co., LLC, Civ. A. No. 1:10–CV–1875, 2011 U.S. Dist. LEXIS 9945, 2011 WL 398087, at *2 (M.D.Pa. Feb.2, 2011). As this Court has previously explained:

Joinder under Rule 14(a) is meant to avoid circularity of action and eliminate duplication of suits. See Judd, 65 F.R.D. at 615; see also Monarch Life Ins. Co. v. Donahue, 702 F.Supp. 1195, 1197 (E.D.Pa.1989) (stating that the aim of Rule 14 is to “accomplish in one proceeding the adjudication of the rights of all persons concerned in the controversy and to prevent the necessity of trying several related claims in different lawsuits”) (internal citations and quotations omitted); 6 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 3d § 1443 (2004). In accordance with this broad purpose, Rule 14(a) has been liberally interpreted to allow the joinder of third-party claims despite allegations of different causes of action or different theories of liability from the original complaint. See Judd, 65 F.R.D. at 614; Monarch Life, 702 F.Supp. at 1198. The factors the Court should consider include the timeliness of the motion, and whether joinder would introduce an unrelated controversy, unduly complicate the case, or prejudice the plaintiff. See Judd [v. General Motors Corp., 65 F.R.D. 612, 615 (M.D.Pa.1974) ].

*5 Id.

Applying these legal benchmarks, federal courts have endorsed the use of Rule 14 joinder to consolidate claims arising out of chain reaction automobile accidents, reasoning that such joinder is particularly appropriate in jurisdictions which have adopted comparative negligence statutes since joinder of all parties allows for a full assessment of all potential, comparative negligence arising out of a single episode. See Tietz v. Blackner, 257 F.R .D. 510 (D.Utah 1994) (Construing Utah’s comparative negligence statute). Pennsylvania is a comparative negligence jurisdiction, see 42 Pa.C.S. § 7102, and case law in Pennsylvania clearly contemplates the joinder of multiple parties in a single lawsuit arising out of a multi-vehicle accident. See generally, Ross v. Tomlin, 696 A.2d 230 (Pa.Super.Ct.1997) (acknowledging joinder of multiple defendants in a chain reaction automobile accident). Furthermore, Pennsylvania courts have long recognized that liability may be apportioned among party-defendants in chain reaction accident cases, where multiple, successive collisions compound the injuries suffered. See generally, Shamey v. State Farm Ins. Co., 229 Pa.Super. 215, 331 A.2d 498 (Pa.Super.1974) (discussing apportionment of liability among defendants in accident case involving successive collisions). In such instances the goals of Pennsylvania’s comparative negligence statute, the apportionment of liability among defendants based on their relative degree of causal fault, are promoted through joinder of all potentially culpable parties in a single action. See 42 Pa.C.S. § 7102.

Moreover, defendant Berrios has articulated a theory of third party negligence as to Taylor Xpress which draws factual support from the record in this litigation, arguing that the third party defendants were negligent in causing an accident which suddenly stopped traffic, under poor weather conditions, leading to rear-end accidents by other vehicles. Cases construing Pennsylvania tort law have found that the sudden stoppage of a vehicle on a roadway under adverse weather conditions may create factual issues concerning negligence and may constitute a proximate cause of an accident involving rear end collisions behind the stopped vehicle. See Gensemer v. Williams, 419 F.2d 1361, 1362 (3d Cir.1970). Further, in vehicle accidents it has been said that: “Issues of negligence and contributory negligence are rarely appropriate for summary judgment. As courts … have repeatedly noted, ‘[o]nly in exceptional cases will questions of negligence [and] contributory negligence … pass from the realm of fact to one of law.’ Paraskevaides v. Four Seasons Wash., 292 F.3d 886, 893 (D.C.Cir.2002) (quoting Shu v. Basinger, 57 A.2d 295, 295–96 (D.C.1948)); see also Lyons v. Barrazotto, 667 A.2d 314, 322 (D.C.1995) ( ‘[i]ssues of contributory negligence, like issues of negligence, present factual questions for the trier of fact [u]nless the evidence is so clear and undisputed that fair-minded men can draw only one conclusion.’) (internal citations omitted). This is no less true in tort claims involving car accidents, as ‘[a]utomobile collisions at street intersections nearly always present questions of fact … Only in exceptional cases will questions of negligence, contributory negligence, and proximate cause pass from the realm of fact to one of law.’ Aqui v. Isaac, 342 A.2d 370, 372 (D.C.1975); see generally Mahnke v. Washington Metro. Area Transit Auth., 821 F.Supp.2d 125, 132–33 (D.D.C.2011) (summarizing case law in this area).” Stehn v. Cody, CIV.A. 11–1036 CKK, 2013 WL 4505438 (D.D.C. Aug.26, 2013). This fundamental truth is also aptly reflected in Pennsylvania case law, which frequently rejects invitations in motor vehicle accident cases on disputed factual records to make judgments regarding negligence and comparative negligence as a matter of law. See, e.g., Burke v. TransAm Trucking, Inc., 605 F.Supp.2d 647, 649 (M.D.Pa.2009); Sonnenberg v. Erie Metro. Transit Auth., 137 Pa.Cmwlth. 533, 534, 586 A.2d 1026, 1027 (1991); LeGrand v. Lincoln Lines, Inc., 253 Pa.Super. 19, 21, 384 A.2d 955, 956 (1978).

*6 Given these legal guideposts, we find that Taylor Xpress has not shown in a persuasive way that it has a meritorious defense to this action of such a compelling quality that Taylor can overcome the prejudice to the other parties arising from a belated reopening of this litigation, or excuse Taylor’s unexplained refusal to participate in this litigation over the past three years. Therefore, finding that the balancing of these discretionary factors heavily favors denial of Taylor’s motion to set aside this default judgment, the motion will be denied.

III. Order

Accordingly, for the forgoing reasons, IT IS ORDERED that Taylor Xpress’ Morton to Reopen the Default Judgment (Doc. 156.), is DENIED.

So ordered.

Footnotes

Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y.1928).