Superior Court of Connecticut, Judicial District of Hartford At Hartford

July 11, 2022, Decided; July 11, 2022, Filed

NO.: HHD-CV21-6139450-S

Reporter

2022 Conn. Super. LEXIS 1740 *

KEVIN WAGNER v. PROGRESSIVE DIRECT INSURANCE COMPANY, ET AL.

Notice: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

Core Terms

apportionment, allegations, Trucking, motion to strike, coverage, carrier, rental, motor vehicle, quotation, renters, marks

Judges:  [*1] Sheridan, J.

Opinion by: Sheridan

Opinion

MEMORANDUM OF DECISION RE EAN HOLDINGS, LLC’s MOTION TO STRIKE (#124)

The apportionment defendant/defendant EAN Holdings, LLC (“EAN Holdings”) has moved to strike Count Four of the plaintiffs amended complaint and Count Three of the apportionment complaint brought by defendant Progressive Direct Ins. Co. (“Progressive”). EAN contends that those counts are legally insufficient because a rental car company has no duty to ensure that its renters maintain insurance and the plaintiff’s injuries were not proximately caused by EAN Holdings’ alleged failure to ensure that a renter failed to maintain liability insurance coverage.

I. PERTINENT ALLEGATIONS

The plaintiff’s complaint is dated February 18, 2021 and seeks uninsured motorist benefits for injuries resulting from a September 3, 2020 accident. Plaintiff alleges he was operating his motor vehicle on I-91 northbound, in Hartford, when he was rear-ended by uninsured vehicle driven by Elvin Savage. By apportionment complaint dated July 15, 2021, Progressive made claims against the uninsured tortfeasor, Savage, his employer, CAS Trucking, LLC, and EAN Holdings, LLC, which allegedly rented the vehicle operated by Savage at [*2]  the time of the accident to CAS Trucking, LLC.

Count Three of the apportionment complaint is directed to EAN Holdings as the owner and lessor of the truck that Savage was driving at the time of the accident. It alleges that EAN Holdings rented the vehicle to CAS Trucking, LLC. Progressive claims that, in leasing the vehicle, EAN Holdings was “independently negligent” for failing to ascertain whether CAS Trucking, LLC had liability insurance coverage, allowing its truck to be leased and driven on Connecticut roadways without insurance, failing to warn CAS Trucking, LLC of the risks of driving without insurance, failing to provide liability coverage to CAS Trucking, LLC, and failing to enforce the terms of its rental agreement. Count Four of the plaintiff’s amended complaint dated October 15, 2021, is brought against EAN Holdings and incorporates the factual allegations of Count Three of Progressive’s apportionment complaint.

II. STANDARD OF REVIEW

“The purpose of a motion to strike is to contest … the legal sufficiency of the allegations of any complaint … to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC. v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003) “It is fundamental that in determining [*3]  the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn, 112, 116-17, 19 A.3d 640 (2011). “A motion to strike … does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010). “If any facts provable under the express and implied allegations in the plaintiffs complaint support a cause of action … the complaint is not vulnerable to a motion to strike.” Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.

III. ANALYSIS

EAN Holdings argues that Progressive’s apportionment claim is legally insufficient because, as a rental car company it has no legal duty to provide insurance coverage to its renters and no obligation to ensure that its renters maintain minimum state liability insurance requirements. EAN Holdings supports its argument with [*4]  several Superior Court decisions (i.e, Escaleria v. Powell, Superior Court, judicial district of Fairfield, Docket No. CV 06 5004566 (November 6, 2007, Matasavage, J.) (44 Conn. L. Rptr. 468, 2007 Conn. Super. LEXIS 2956); Angione v. Bloom, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5006850, 2011 Conn. Super. LEXIS 2632 (October 6, 2011, Jennings, J.T.R.); and Bertocki v. Williams, Superior Court, judicial district of New London, Docket No. CV 09 6000929, 2010 Conn. Super. LEXIS 2112 (August 16, 2010, Devine, J.)) that fully explore the absence of this duty as a matter of law.

In opposition, Progressive distinguishes those cases by arguing that the present case involves a commercial vehicle where the rental agreement contains language requiring the lessor to provide insurance coverage. Progressive claims that EAN Holdings was negligent in not enforcing the insurance provisions its rental agreement with CAS Trucking LLC, citing Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 292, 87 A.3d 534 (2014), Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 688, 508 A.2d 438 (1986) and Johnson v. Flammia, 169 Conn. 491, 496, 363 A.2d 1048 (1975) for the proposition that such conduct “can form the basis for negligence.” The court does not agree.

While Meyers and Neiditz recognize that an independent claim of tortious conduct may arise “in the context of a contractual relationship” that tort liability is between the parties to the contract. The terms of the [*5]  contract do not establish a duty flowing to strangers to that agreement such that cause of action arises in negligence for a breach of that duty.

Moreover, the court is bound by the allegations of the pleadings. The apportionment complaint is somewhat vague as to the exact nature of the contractual provision in question. Specifically, Paragraph 21(e) of the apportionment complaint alleges:

(e) [EAN Holdings] failed to enforce the terms of its rental agreement by ensuring that a vehicle used for the transport of product as a common carrier, contract carrier, or private carrier of property in the State of Connecticut carried bodily injury and property damage liability insurance required by a motor carrier in the State of Connecticut.

The apportionment complaint appears to allege that the agreement obligates the lessee to comply with insurance requirements set by the State of Connecticut for a motor carrier. The savings clause of the Graves Amendment clarifies that the federal law does not supersede state laws that impose “financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle” or that impose “liability [*6]  on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.” 49 U.S.C. § 30106(b).

While Connecticut’s statutory requirements for minimum insurance for motor carriers are not superseded under the Graves Amendment, their existence in no way undercuts the Graves Amendment’s absolute exemption of commercial renters and lessors of motor vehicles from liability for damages caused solely by the negligence of those who rent or lease from them. The failure to enforce a contractual provision obligating the lessor to meet minimum insurance requirements does not constitute “negligence on the part of the owner” sufficient to avoid the pre-emptive effect of 49 U.S.C. § 30106(a).

In addition, the court finds persuasive the reasoning advanced by Judge Matasavage in Escaleria v. Powell, No. CV065004566S, 2007 Conn. Super. LEXIS 2956, 2007 WL 4210982 regarding the lack of proximate cause. The plaintiff’s motor vehicle collision and the resulting injuries and damages were caused, if at all, by the negligent operation of a third party (Elvin Savage), and not by EAN Holding’s alleged failure to ensure that CAS Trucking, LLC had insurance coverage. There must be a causal relation between the act [*7]  of negligence and the injury in whole or in part, in order for an action based in negligence to be legally sufficient. Right v. Breen, 277 Conn. 364, 372, 890 A.2d 1287 (2006).

IV. CONCLUSION

For the reasons stated, the apportionment defendant/defendant EAN Holdings, LLC’s motion to strike is granted. Count Three of the apportionment complaint brought by defendant Progressive Direct Ins. Co. is stricken. Count Four of the plaintiff’s amended complaint is also stricken.

BY THE COURT,

/s/ Sheridan

Sheridan, J.

End of Document

United States District Court for the Western District of Tennessee, Western Division

July 18, 2022, Decided; July 18, 2022, Filed

No. 2:21-cv-02242-TLP-cgc

Reporter

2022 U.S. Dist. LEXIS 126653 *; 2022 WL 2812058

BALLENTINE EXPRESS CORP., Plaintiff, v. EAN HOLDINGS, LLC, d/b/a Enterprise Rentals, and STEVEN D. BARKSDALE, Defendants, v. SHELTER GENERAL INSURANCE COMPANY, Third-Party Defendant.

Prior History: Ballentine Express Corp. v. EAN Holdings, LLC, 2022 U.S. Dist. LEXIS 28777 (W.D. Tenn., Feb. 17, 2022)

Core Terms

third-party, motion to dismiss, allegations, coverage

Counsel:  [*1] For Ballentine Express Corp., Plaintiff: Kelly McLeod, Mark C Carroll, LEAD ATTORNEYS, CARROLL BUFKIN PLLC, Ridgeland, MS; Luke Whitaker, CARROLL BUFKIN PLLC, MS, Ridgeland, MS.

For EAN Holdings, LLC, doing business asEnterprise Rentals, Defendant: Joseph R Swift, LEAD ATTORNEY, BAKER, STERCH, COWDEN & RICE, St Louis, MO; Terrill L. Adkins, TRAMMELL ADKINS & WARD, Knoxville, TN.

For Steven D. Barksdale, Defendant: Ryan Skertich, LEAD ATTORNEY, MORGAN & MORGAN MEMPHIS, PLC, Memphis, TN.

For Shelter General Insurance Company, ThirdParty Defendant: Edward R McNees, HOLCOMB DUNBAR WATTS BEST MASTERS & GOLMON PA, Oxford, MS; Robert Bradley Best, HOLBOMB DUNBAR WATTS BEST MASTERS & GOLMON, PA, Oxford, MS.

For EAN Holdings, LLC, ThirdParty Plaintiff: Joseph R Swift, LEAD ATTORNEY, BAKER, STERCH, COWDEN & RICE, St Louis, MO; Terrill L. Adkins, TRAMMELL ADKINS & WARD, Knoxville, TN.

For Shelter General Insurance Company, Counter Claimant: Robert Bradley Best, HOLBOMB DUNBAR WATTS BEST MASTERS & GOLMON, PA, Oxford, MS.

For EAN Holdings, LLC, Counter Defendant: Joseph R Swift, LEAD ATTORNEY, BAKER, STERCH, COWDEN & RICE, St Louis, MO; Terrill L. Adkins, TRAMMELL ADKINS & WARD, Knoxville, TN.

Judges: THOMAS L. [*2]  PARKER, UNITED STATES DISTRICT JUDGE.

Opinion by: THOMAS L. PARKER

Opinion

ORDER GRANTING THIRD-PARTY DEFENDANT’S MOTION TO DISMISS

This is a dispute about insurance coverage. First, Steven Barksdale sued Plaintiff Ballentine Express Corp. (“Ballentine”) in Mississippi state court over injuries from a car wreck. Ballentine then sued Defendants EAN Holdings, LLC, d/b/a/ Enterprise Truck Rental (“Enterprise”) and Steven D. Barksdale here. (ECF No. 1.) In turn, Defendant Enterprise moved for joinder of Third-Party Defendant Shelter General Insurance Company (“Shelter General”) in July 2021, and the Court granted the motion. (ECF Nos. 28 & 30.) Enterprise then filed a third-party complaint against Shelter General in November 2021. (ECF No. 45.) Shelter General now moves to dismiss the third-party complaint under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 89.) Enterprise responded to the motion. (ECF No. 95.) And Shelter General replied. (ECF No. 99.) For the reasons below, the Court GRANTS Shelter General’s motion to dismiss.

BACKGROUND

As the Court has explained, this is a dispute about who has to buy insurance coverage and making sure that the coverage conforms with applicable laws. (ECF No. 70 at PageID 502.) According to the original complaint, [*3]  Ballentine is a “commercial trucking entity” and “for-hire general freight carrier” based in Memphis, Tennessee. (ECF No. 37 at PageID 255.) Enterprise alleges in its third-party complaint that Ballentine rented a vehicle from it in January 2018. (ECF No. 45 at PageID 426.) As part of the rental agreement, Ballentine bought from Enterprise “liability protection with liability limits of $100,000 per person and $300,000 per accident.” (Id.) One of Ballentine’s drivers then got into an accident with Defendant Barksdale while driving the vehicle rented from Enterprise. (Id.)

Enterprise alleges that at the time of the accident, Ballentine had a $1,000,000.00 liability insurance policy from Shelter General. (Id.) And Enterprise asserts that Shelter General issued an MCS-90 endorsement for that insurance policy—allowing Ballentine to maintain its motor carrier operating authority under the Federal Motor Carrier Act of 1980 and the Federal Motor Carrier Safety Regulations. (Id. at PageID 427.)

And so this lawsuit began when Barksdale sued Ballentine in Mississippi state court over the accident. (Id.) And Enterprise alleges here that Shelter General is providing Ballentine’s defense to that Mississippi suit “under a reservation [*4]  of rights even though the MCS-90 endorsement attached to [the] policy acts as a surety requiring [Shelter General] to satisfy any judgment entered against [Ballentine] regardless of whether [Shelter General] owes indemnity to [Ballentine].” (Id.) Enterprise also claims that Shelter General is paying the attorney fees for Ballentine related to the suit in this Court. (Id. at PageID 427-28.)

Enterprise asserts Ballentine’s insurance coverage should come from Shelter General, not Enterprise. (Id. at PageID 428-29.) So Enterprise seeks a declaratory judgment stating with five parts: (1) “[Shelter General] is obligated to satisfy any judgment entered against [Ballentine] in the underlying tort action filed by Steven Barksdale up to the liability limits of the policy of insurance issued by it to [Ballentine] and in effect at the time of the subject incident”; (2) “[Shelter General] is obligated to satisfy any judgment entered against [Enterprise] in the underlying tort action filed by Steven Barksdale up to the liability limits represented in the MCS- 90 endorsement filed by [Shelter General] in effect at the time of the subject incident”; (3) “[Shelter General], rather than [Enterprise], [*5]  is obligated to provide a defense to [Ballentine] in the underlying tort action filed by Steven Barksdale”; (4) “[t]he commercial policy of insurance issued by [Shelter General] to [Ballentine] and in effect at the time of the subject incident is primary to the liability protection purchased by [Ballentine] from [Enterprise]”; and (5) “[t]he [Shelter General] insurance policy provides indemnity coverage for the indemnity claim made by this defendant pursuant to the Master Truck Rental Agreement.” (Id. at PageID 429-30.)

LEGAL STANDARD

Courts assess whether a complaint states a claim upon which relief can be granted under the standards for Rule 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). “Accepting all well-pleaded allegations in the complaint as true, the court ‘consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). To survive a motion to dismiss under 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.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

Though a court will grant a motion to dismiss if a plaintiff has no plausible claim for relief, a court must “construe the complaint in [*6]  the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). But a court “need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby Cnty., 220 F.3d 433, 446 (6th Cir. 2000)). When resolving a Rule 12(b)(6) motion to dismiss, “the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.” Meyers v. Cincinnati Bd. of Educ., 983 F.3d 873, 880 (6th Cir. 2020) (quoting Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001)).

ANALYSIS

Shelter General argues that the third-party complaint violates Rule of Civil Procedure 14, which governs third-party practice. (ECF No. 90 at PageID 655-61.) Rule 14(a) says that “[a] defending party may, as third-party plaintiff, serve a summons and complaint on 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)(1)(emphasis added). According to the Sixth Circuit, “[t]hird-party pleading is appropriate only where the third-party defendant’s liability to the third-party plaintiff is dependent on the outcome of the main claim; one that merely arises out of the same set of facts does not allow a third-party defendant to be impleaded.” Am. Zurich Ins. Co. v. Cooper Tire & Rubber Co., 512 F.3d 800, 805 (6th Cir. 2008). And “a defendant’s claim against a third-party [*7]  defendant cannot simply be an independent or related claim, but must be based upon the original plaintiff’s claim against the defendant.” Id. (citations omitted).

Shelter General stresses that it has no potential liability to Enterprise for Ballentine’s claim against Enterprise. (ECF No. 90 at PageID 655-56.) The motion to dismiss argues that, at most, Shelter General may be liable to Ballentine, not Enterprise. (Id.) And so Shelter General asserts that Enterprise cannot properly bring a third-party complaint against Shelter General. (Id.) Shelter General also contends that Enterprise lacks standing to seek a declaratory judgment related to an insurance policy between Shelter General and Ballentine—a policy to which Enterprise is not a party. (Id.) Lastly, Shelter General contends that the Court should exercise its discretion and reject jurisdiction over Enterprise’s third-party complaint under the Declaratory Judgment Act. (Id. at PageID 661-63.)

In response, Enterprise does not mention Federal Rule of Civil Procedure 14. (ECF No. 95.) Enterprise spends most of its response describing Shelter General’s role and financial interest in the outcome—alleging that there is a conflict of interest between Shelter General and Ballentine. (Id. at PageID [*8]  679-82.) Enterprise then concludes that Shelter General is an indispensable party to this action under Federal Rule of Civil Procedure 19. (Id. at PageID 682-83.) But this argument fails to address Shelter General’s assertion that Enterprise’s third-party complaint violates Rule 14. And rather than explaining why the Court should not dismiss the third-party complaint, Enterprise argues that the Court should require Ballentine to join Shelter General to this matter as a party defendant.¹ (Id. at PageID 682-83.)

Enterprise simply does not respond to Shelter General’s arguments for dismissing the third-party complaint. And “[w]here a party fails to respond to an argument in a motion to dismiss, ‘the Court assumes he concedes this point and abandons the claim.'” ARJN #3 v. Cooper, 517 F. Supp. 3d 732, 750 (M.D. Tenn. 2021) (quoting PNC Bank, N.A. v. Goyette Mech. Co., 88 F. Supp. 3d 775, 785 (E.D. Mich. 2015)); see also Batson v. Hoover, 355 F. Supp. 3d 604, 618 (E.D. Mich. 2018). Indeed, it is well established that “[a] plaintiff abandons undefended claims.” Cruz v. Capital One, N.A., 192 F. Supp. 3d 832, 838 (E.D. Mich. 2016) (citing Doe v. Bredesen, 507 F.3d 998, 1007-08 (6th Cir. 2007); Meredith v. Allen Cnty. War Memorial Hosp. Comm’n, 397 F.2d 33, 34 n.2 (6th Cir. 1968); Mekani v. Homecomings Fin., LLC, 752 F. Supp. 2d 785, 797 (E.D. Mich. 2010)). Enterprise’s lack of a response here is enough to grant the motion to dismiss.

What is more, this Court finds compelling Shelter General’s main point that this is not a proper third-party complaint because its contractual obligation is to Ballentine, not Enterprise. Perhaps Enterprise too recognizes how persuasive that position is and chose to focus its [*9]  response elsewhere. In any event, the Court GRANTS Shelter General’s motion to dismiss.²

CONCLUSION

Based on the above, the Court GRANTS Shelter General’s motion to dismiss Enterprise’s third-party complaint.

SO ORDERED, this 18th day of July, 2022.

/s/ Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE

End of Document

---

¹ Enterprise made the same request when responding to an earlier motion. (ECF No. 80 at PageID 525.) The Court denied the request without prejudice because Enterprise did not include a certificate of consultation as required by Local Rule 7.2(a)(1)(B), and because the Court found that Enterprise “should have raised its requests for relief in separate motions rather than in response to Shelter General’s motion . . . .” (ECF No. 103 at PageID 718.) Enterprise has not yet moved to compel Ballentine to join Shelter General to the original complaint.

² Enterprise requests a hearing under Local Rule 7.2(d). (ECF No. 95 at PageID 684.) The Court finds that a motion hearing is unnecessary to resolve the issues presented here.