United States District Court,

N.D. Mississippi,

Eastern Division.

Ruth LOLLAR, Plaintiff

v.

ROYAL TRUCKING COMPANY and Cherokee Insurance Company, Defendants.

No. 1:09CV10-SA-JAD.

July 15, 2009.

MEMORANDUM OPINION

SHARION AYCOCK, District Judge.

Presently before the Court is Plaintiff’s Motion to Remand [12]. After reviewing the motion, response, memoranda, and authorities, the Court finds the motion should be GRANTED.

Factual and Procedural Background

Ruth Lollar filed an action in the Clay County Circuit Court against Royal Trucking Company and Cherokee Insurance Company. Lollar is a resident of Alabama, Cherokee Insurance has its principal place of business in Michigan, and Royal Trucking is based in Mississippi. Her claim against Royal Trucking is based on an incident in the latter part of 2006, in which Plaintiff and her husband were hired to haul loads for Royal Trucking. Plaintiff asserts that part of the contractual agreement was that Plaintiff would not be required to unload any part of the cargo she and her husband hauled. However, on December 18, 2006, after hauling a load to Salisbury, Maryland, Plaintiff was required to unload the contents of the truck.

Plaintiff contends that while unloading the truck, she was pinned against the trailer’s wall by a four thousand pound pallet. As a result, she claims she suffered injury to her neck, shoulder, arm, and lower back. The defendants have allegedly denied that this is a workers’ compensation claim.However, according to the Plaintiff, Royal Trucking and Cherokee Insurance have conceded that Plaintiff’s accident would be covered under an Occupational Accident Policy. That policy provides a maximum benefit period of 104 weeks.

Plaintiff contends that she filed a Petition to Controvert with the Mississippi Workers’ Compensation Commission and has not received a ruling yet.

Plaintiff filed a complaint against Royal Trucking and Cherokee Insurance alleging she is entitled to injunctive relief against Cherokee Insurance invalidating the two year limitation of the Occupational Accident Policy, as well as a court order requiring Cherokee to cover her lower back injury. Moreover, Plaintiff asserts the following claims: bad faith refusal to cover Plaintiff’s back injury against Cherokee Insurance; failing to provide a safe working environment against Royal Trucking; gross negligence against both Royal Trucking and Cherokee Insurance; breach of contract against Royal Trucking by requiring Plaintiff to unload her own truck; breach of contract against Cherokee Insurance for failing to recognize and treat her lower back injury under the Occupational Accident Policy; fraud/misrepresentation against Royal Trucking for allegedly promising Plaintiff would not have to unload her truck; and punitive damages against both defendants.

On January 20, 2009, Cherokee Insurance filed a Notice of Removal alleging Plaintiff misjoined her claims against Cherokee with her claims against the instate defendant Royal Trucking for the purpose of depriving Cherokee of its right to remove this action. Cherokee contends that under Mississippi Rule of Civil Procedure 20, Plaintiff’s allegations did not arise out of the same transaction or occurrence, and are therefore, severable. Once the claims against Royal Trucking are severed, Cherokee maintains that this Court will have jurisdiction over Plaintiff’s claims against it.

Plaintiff filed this Motion to Remand and countered that the joinder of both parties in the same lawsuit was proper because the claims against both defendants arise out of the same December 16, 2006, occurrence. Moreover, the Plaintiff asserts that removal was inappropriate because her claim is governed by workers’ compensation laws.

Fraudulent Misjoinder Discussion

The concept of fraudulent misjoinder was first articulated by the Eleventh Circuit in Tapscott v. MS Dealer Service Corporation, 77 F.3d 1353, 1360 (11th Cir.1996), abrogated on other grounds, Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir.2000), in which the court found that the misjoinder of claims against two groups of unrelated defendants was “so egregious as to constitute fraudulent joinder.” Id. at 1360.The court determined that in light of the egregious misjoinder, it was proper to sever the claims from one another, and to permit the diverse parties to remain in federal court as a properly removed case. The Fifth Circuit endorsed Tapscott’s fraudulent misjoinder holding in In re Benjamin Moore & Company, 309 F.3d 296 (5th Cir.2002), observing that “misjoinder … should not be allowed to defeat diversity jurisdiction.”

Cherokee Insurance submits that the claims against it are obviously misj oined with the claims against Royal Trucking, and that, as in Tapscott, the court should sever and remand only the claims against Royal Trucking, while retaining jurisdiction over the claims against Cherokee Insurance.

The federal courts of this state have held that in a removed case, the question whether there has been fraudulent or improper misjoinder is determined by reference to the state’s rules on joinder. See Mohamed v. Mitchell, 2006 U.S. Dist. LEXIS 5251, 2006 WL 212218 (N.D.Miss. Jan.23, 2006) (stating that “[i]n determining whether any such egregious misjoinder has taken place in this case, Rule 20 of the Mississippi Rules of Civil Procedure applies”); Sweeney v. Sherwin Williams Co., 304 F.Supp.2d 868, 875 (S.D.Miss.2004) (concluding that “Mississippi Rule 20 and supporting case law interpretations of Mississippi Rule 20 should be utilized in a fraudulent misjoinder analysis” rather than federal law); Jackson v. Truly, 307 F.Supp.2d 818, 824 (N.D.Miss.2004) (reasoning that “since fraudulent misjoinder claims are clearly analogous to fraudulent joinder claims, and, to the extent that applying Mississippi Rule 20 instead of Federal Rule 20 will affect the outcome of a fraudulent misjoinder case, the Court will apply the Mississippi rule”). The question thus presented is whether “[t]here is a reasonable possibility that [a Mississippi] court would find that plaintiff’s claims” are properly joined. Conk v. Richards & O’Neil, LLP, 77 F.Supp.2d 956, 972 (S.D.Ind.1999).

Mississippi Rule of Civil Procedure 20 provides that multiple parties may join together as plaintiffs if they

assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these persons will arise in the action.

MISS. R. CIV. PROC. 20(a). With respect to defendants, all may be joined in a case where a plaintiff asserts that they are jointly or severally liable to him or his claimed right to relief arises from the “same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action.”Id. See Mercer v. Moody, 918 So.2d 664, 667 (Miss.2005) (“Before multiple parties may be joined as either plaintiffs or defendants, ‘[b]oth of these requirements must be satisfied in order to sustain party joinder under Rule 20(a)….’ ” (citing Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 46 (Miss.2004)).

Cherokee Insurance here argues that the “same transaction” requirement is not satisfied, because there are at least two distinct transactions at issue; the first, the negligence stemming from the injury received while an independent contractor for Royal Trucking, and the second, a contractual or extracontractual determination of potential bad faith in the insurance claim handling.

The Mississippi Supreme Court addressed the requirements of Mississippi Rule of Civil Procedure 20 in the context of a lawsuit which joined a liability claim against a tortfeasor with a declaratory judgment claim to establish the plaintiff’s right to benefits under his employer’s insurance policy. Mercer v. Moody, 918 So.2d 664, 667 (Miss.2005). Despite the fact that the plaintiff requested different relief from the tortfeasor and the insurance carrier, the court opined that

[t]he “same transaction or occurrence” requirement of Rule 20(a) is satisfied, as any potential claims [plaintiff] had against either [the tortfeasor] or [the insurance carrier] arose out of one distinct event, the accident of March 14, 2001.

Id.; see also Mohamed, 2006 U.S. Dist. LEXIS 5251 at(noting that the plaintiff sued all defendants for conduct related to a single event: the June 15, 2002, automobile accident; therefore, the “same transaction or occurrence” prong of Rule 20 was met). Accordingly, Plaintiff’s claims against both the trucking company and the insurer arise out of the same transaction or occurrence under Mississippi Rule of Civil Procedure 20.

Moreover, there are questions of fact and law common to all defendants in this action. Specifically, Plaintiff will have to present the same medical records and witnesses, as well as other evidence, in prosecuting the claims against both defendants. See Mohamed, 2006 U.S. Dist. LEXIS 5251, *6-7.

Defendant has not proved that the claims against Cherokee Insurance and Royal Trucking were misjoined. Thus, the parties are not diverse, and this Court has no jurisdiction over the matter. Plaintiff’s Motion to Remand is GRANTED.

SO ORDERED,

N.D.Miss.,2009.

Lollar v. Royal Trucking Co.

Slip Copy, 2009 WL 2150811 (N.D.Miss.)

END OF DOCUMENT

United States District Court,

D. Delaware.

Stephen HALCHUCK, Plaintiff,

v.

Robert L. WILLIAMS, d/b/a Robert L. Williams Trucking, Defendant/Third-Party Plaintiff,

v.

Robert D. Nevin, Jr. and the National Cash Register Company, Third-Party Defendants/Fourth-Party Plaintiffs,

v.

Tipton Trucking Company, Inc., and Wayne Shelalis, Fourth-Party Defendants.

Civil Action No. 07-218-JJF.

July 15, 2009.

MEMORANDUM OPINION

FARNAN, District Judge.

Pending before the Court is the Motion Of Third-Party Defendants/Fourth-Party Plaintiffs Robert D. Nevin, Jr. And The National Cash Register Company For Summary Judgment. (D.I.72.) For the reasons discussed, the Court will deny the Motion.

I. BACKGROUND

On November 10, 2005, Third-Party Defendant/Fourth Party Plaintiff Robert Nevin was driving north on I-495 during the course of his employment as a field technician for Third-Party Defendant/Fourth Party Plaintiff The National Cash Register Company. After one of the headlamps on his vehicle flew off, Nevin pulled over to the right shoulder of the highway to attempt retrieve the headlamp. Waiting for a break in traffic so he could retrieve the headlamp, Nevin sat in his vehicle looking into his driver-side mirror. While doing so, Nevin observed a tractor-trailer, driven by Fourth-Party Defendant Wayne Shelalis, rapidly approaching partially in the right shoulder. Nevin claims to have had no time to react to the approaching tractor-trailer, and the tractor-trailer struck Nevin’s vehicle (the “Nevin-Shelalis” collision) on its left side. Delaware State Police came to the accident scene and recorded the time of the Nevin-Shelalis collision as 1128 hours. The State Police cited Nevin for stopping on the highway.

Shortly thereafter, Defendant/Third-Party Plaintiff Robert Williams was traveling north on I-495, when he saw that traffic ahead of him had slowed because of the Nevin-Shelalis collision. Williams claims he was traveling in the middle lane at the time and to have adjusted his speed accordingly. Concurrently, Plaintiff Stephen Halchuck was also traveling north on I-495, claiming to have been traveling in the left most lane, and was preparing to pass Williams when, Halchuck alleges, Williams moved partially into the left most lane and then collided with Halchuck (the “Halchuck-Williams” collision). Delaware State Police came to the scene of this collision and recorded the time of the Halchuck-Williams collision as 1131 hours, approximately three minutes after the Nevin-Shelalis collision.

Following these events, in April of 2007, Halchuck brought this action against Williams alleging, inter alia, negligent vehicle operation. (D.I.1.) Williams then filed a third-party complaint (D.I.18) asserting that, should he be found liable, he is entitled to contribution and/or indemnification from Nevin, whose allegedly negligent conduct caused Halchuck’s injuries, and in addition, that National Cash Register, as Nevin’s employer, is vicariously liable. Halchuck responded with an Amended Complaint (D.I.29) asserting that Nevin’s, and, by way of respondeat superior, National Cash Register’s negligence was an actual and proximate cause of the Halchuck-Williams collision. Subsequently, Nevin filed a Fourth-Party Complaint (D.I.33) asserting that if he is found liable, he is entitled to contribution and/or indemnification from Shelalis and his employer, Tipton Trucking Co., Inc.

Following the close of discovery, Nevin and National Cash Register filed the instant Motion For Summary Judgment, contending that, to the extent Nevin was negligent, he was not a proximate cause of Halchuck’s injuries.

II. PARTIES’ CONTENTIONS

Nevin contends that his alleged negligence was not the proximate cause of the Halchuck-Williams collision. Specifically, Nevin contends that under the applicable Delaware law for proximate cause, even if Nevin was negligent in parking his car on the side of the road, it was unforeseeable that “another accident might occur sometime later in a traffic jam.”(D.I. 73 at 8.)

Halchuck responds that the alleged negligent act by Nevin started a chain of events that was unbroken by any superseding cause. Thus, according to Halchuck, the Halchuck-Williams collision was part of a natural and continuous sequence of events flowing from Nevin’s alleged negligence.

III. Legal Standard

In pertinent part, Rule 56(c) of the Federal Rules of Civil Procedure provides that a party is entitled to summary judgment if a court determines from its examination of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In determining whether there is a triable dispute of material fact, a court must review all of the evidence and construe all inferences in the light most favorable to the non-moving party. Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 200 (3d Cir.1995).

To defeat a motion for summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts…. In the language of the Rule, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citations omitted). However, the mere existence of some evidence in support of the non-movant will not be sufficient to support a denial of a motion for summary judgment; there must be enough evidence to enable a jury to reasonably find for the non-movant on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, if the evidence is “merely colorable, or is not significantly probative,” summary judgment may be granted. Id.

IV. DECISION

Under Delaware law, to prevail on a claim of negligence, a plaintiff must prove (1) that the defendant owed the plaintiff a duty of care, (2) that the defendant breached that duty, (3) and that the plaintiff’s injury was proximately caused by the breach of that duty. See Naidu v. Laird, 539 A.2d 1064, 1072 (Del.1988). In this case, Nevin’s Motion For Summary Judgment rests solely on the contention that Halchuck cannot show that his injuries were proximately caused by Nevin’s alleged breach of his duty of care.

This contested element of Halchuk’s prima facie case, proximate cause, has been defined in the State of Delaware as causation “which in [a] natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.” Duphily v. Del. Elec. Coop., Inc., 662 A.2d 821, 829 (Del.1995) (quoting Culver v. Bennett, 588 A.2d 1094, 1097 (Del.1989)). However, even if there is an intervening act, the causal chain is not automatically broken, as there may be more than one proximate cause to an injury. Id. For an intervening act to break a causal chain, it must have been unforeseeable to the original tortfeasor. Id. Whether an intervening act is unforeseeable and hence a superseding cause is normally a question for the trier-of-fact. Id. at 830.Only in cases where “no reasonable difference of opinion as to the conclusion to be reached on the question of whether an intervening cause is abnormal, unforeseeable, or extraordinarily negligent, should the question [of proximate cause] be determined by the Court as a matter of law.” Id. at 831 (citations omitted).

Nevin, in support of his Motion For Summary Judgment, argues that the Halchuck-Willaims collision was an unforeseeable result of his alleged negligence and that Halchuck lacks any evidence to create a genuine issue of material fact on this issue. In support of this position, Nevin relies on Vollendorf v. Craig, No. 01C-08-106, 2004 Del.Super. LEXIS 58 (Del.Super.Feb. 17, 2004). In Vollendorf, plaintiffs were stopped at a traffic light attempting to make a right turn, when they were struck from behind and pushed into the roadway where one of the defendants, Malcolm Brown, was traveling 5-10 miles per hour over the speed limit and struck plaintiffs.Id. at *2-3.In Vollendorf, the court granted Brown’s motion for summary judgment, explaining that while Brown’s speeding may have been a “but for” cause of his collision with plaintiffs, it was not a proximate cause because, in the first instance, even if Brown had been traveling at the speed limit, the collision was inevitable. Id. at *11.Furthermore, to the extent plaintiffs argued that Brown’s speeding proximately caused the collision because it foreclosed an opportunity for them to make a right turn, the court explained that “[t]here is no principled basis for holding Brown liable merely because his speed moved him to a point in the highway a few moments sooner, which only by tragic coincidence made a collision possible.”Id. at *12.

Nevin contends that Halchuck, like the plaintiff in Vollendorf, cannot establish that he was the proximate cause of the Halchuck-Williams collision, but can at the very most establish that his alleged negligence was a “but for” cause of this collision. The Court is unpersuaded and concludes that this case distinguishable from Vollendorf.Indeed, the Vollendorf court granted summary judgment because the collision at issue was not a result of Brown’s speeding but was instead the result of a “tragic coincidence.” Here, however, on the current record and procedural posture, the Court cannot draw the same conclusion. Indeed, Nevin was cited by the Delaware State Police for an improper stop on the highway. (D.I. 77, Exh 3. at 2,4.) Moreover, at deposition, Shelalis testified that Nevin’s vehicle was occupying “about almost half” of the right lane, and thus, forced other vehicles to diverge from their normal course of travel. (D.I. 77, Exh 2 at 13:6-17.) Likewise, Williams stated at deposition that he moved into the left lane specifically to avoid the leftward traffic shifting that resulted from the Nevin-Shelalis collision. (D.I. 77, Exh 4 at 65:7-16.) Based on this evidence, a reasonable jury could conclude that Nevin was aware, or should have been aware, that his decision to stop his car so as to block almost half the right lane of an interstate highway could precipitate not only the collision involving himself and Shelalis, but a range of subsequent collisions. Put another way, it may very well be that inappropriately parking on a shoulder requires drivers to make foreseeable “defensive and offensive” reactions that result in subsequent collisions.See Rutledge v. Wood, No. 01C-12-007, 2003 Del.Super. LEXIS 12, at(Del.Super.Jan. 17, 2003) (denying summary judgment for a first driver that left “chaos” “in his wake” when he provoked a second driver who, in trying to pass the plaintiff in the right hand shoulder, collided with the plaintiff). Thus, the Court cannot decide the proximate causation issue as a matter of law.

IV. CONCLUSION

For the foregoing reasons, the Court will deny the Motion Of Third-Party Defendants/Fourth-Party Plaintiffs Robert D. Nevin, Jr. And The National Cash Register Company For Summary Judgment (D.I.72).