JOHN BROWN and SANDRA BROWN, Plaintiffs, v. JAVIER CARMONA CEBALLOS; GM CARGO, INC.; and CASTLEPOINT FLORIDA INSURANCE COMPANY, Defendants.

 

Case No. 6:15-cv-01330-JTM

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

 

2016 U.S. Dist. LEXIS 69282

 

 

May 26, 2016, Decided

May 26, 2016, Filed

 

 

PRIOR HISTORY: Brown v. Ceballos, 2016 U.S. Dist. LEXIS 44021 (D. Kan., Mar. 31, 2016)

 

COUNSEL:  [*1] For John Brown, Husband, Sandra Brown, Wife, Plaintiffs: Amy S. Lemley, Jay F. Fowler, LEAD ATTORNEYS, Foulston Siefkin LLP – Wichita, Wichita, KS.

 

For Javier Carmona Ceballos, GM Cargo Inc., CastlePoint Florida Insurance Company, Defendants: Christopher J. Lang, LEAD ATTORNEY, Pitzer Snodgrass, PC, St. Louis, MO.

 

JUDGES: J. THOMAS MARTEN, JUDGE.

 

OPINION BY: J. THOMAS MARTEN

 

OPINION

 

MEMORANDUM AND ORDER

This matter is before the court on defendant Castlepoint Florida Insurance Company’s motion to dismiss (Dkt. 34). The motion argues that the court lacks personal jurisdiction over Castlepoint. For the reasons set forth below, the court denies the motion.

 

1. Background.

Plaintiffs’ complaint alleges that on December 4, 2013, defendant Javier Carmona Ceballos (“Carmona”) was driving a tractor-trailer rig on Interstate 70 in Kansas, when he negligently caused the truck to strike plaintiffs’ vehicle, thereby injuring the plaintiffs. It alleges that Carmona was an agent or employee of GM Cargo, Inc., and his acts were within the scope of his employment, making GM Cargo vicariously liable for his actions. It also alleges that GM Cargo’s negligence in hiring, retaining and training Carmona was a proximate cause of plaintiffs’ [*2]  injuries. Finally, it alleges that Castlepoint Florida Insurance Company, a Florida corporation with its principal place of business in New York, was the insurer of GM Cargo and Carmona. The complaint alleges personal jurisdiction over Castlepoint “because it conducts substantial and continuous business” in Kansas. Dkt. 1, ¶¶ 7, 27. It further alleges that K.S.A. § 66-1,128 permits a direct cause of action against Castlepoint.

Castlepoint moves to dismiss for lack of personal jurisdiction. It argues that it does not have sufficient minimum contacts with Kansas to satisfy due process. Castlepoint asserts that it has no office or agent in Kansas, does not transact any business in Kansas, has not caused any tortious injury in the state, and has no other ties to the state such as owning property, having a telephone listing, or having a bank account.

In response, plaintiffs argue that K.S.A. § 66-1,128 permits a direct action against an insurer arising out of a tort by an insured commercial trucker, and that such liability is sufficient for jurisdiction. Dkt. 37 at 1. Plaintiffs argue that “direct liability arising from the commission of ‘a tortious act in the state’ is sufficient to impose jurisdiction” under the Kansas [*3]  long-arm statute, K.S.A. § 60-308(b)(1)(B).

 

1. Standards.

In determining whether a federal court has personal jurisdiction over a defendant, the court must determine: 1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant; and 2) whether the exercise of jurisdiction comports with due process. Niemi v. Lasshofer, 770 F.3d 1331, 1348 (10th Cir. 2014) (citing Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006)). Because Kansas’s long-arm statute confers jurisdiction to the extent of the Due Process Clause, see Merriman v. Crompton Corp., 282 Kan. 433, 459, 146 P.3d 162, 179 (2006), the court can proceed directly to the question of due process. Niemi, 770 F.3d at 1348.

An exercise of personal jurisdiction over a nonresident defendant is consistent with due process if: 1) the defendant has minimum contacts with the state such that it should reasonably anticipate being haled into court there; and 2) such jurisdiction will not offend traditional notions of fair play and substantial justice. Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1067 (10th Cir. 2007). The first step may be demonstrated by showing the existence of either general jurisdiction or specific jurisdiction. Because plaintiffs do not claim that general jurisdiction exists here, see Dkt. 37 at 1, the court turns to specific jurisdiction.

Under the specific jurisdiction requirement, a plaintiff must show that: 1) defendant has purposefully availed itself of the privilege [*4]  of conducting activities or consummating a transaction in the forum state; and 2) the litigation results from alleged injuries that arise out of or relate to those activities. Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1160 (10th Cir. 2010). In tort, as opposed to contract cases, courts sometimes employ the “purposeful direction” test, under which plaintiff must show: 1) an intentional action 2) that was expressly aimed at the forum state, and 3) with knowledge that the brunt of the injury would be felt in the forum state. See Niemi, 770 F.3d at 1348. In either case, the “purposeful” requirement is designed to ensure that a nonresident defendant is not haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. Id. See also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

The plaintiff bears the burden of establishing personal jurisdiction over a defendant. When a motion to dismiss for lack of jurisdiction is ruled on without an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdiction. The plaintiff may meet its burden by demonstrating, via affidavits or other written materials, facts that if true would support jurisdiction over the defendant. See OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998).

 

III. Discussion.

Exercise of jurisdiction over Castlepoint in this case is supported by defendant’s minimum [*5]  contacts with the state. While the record at this point does not include Castlepoint’s insurance contract with GM Cargo,1 plaintiffs’ allegations show that Castlepoint purposefully provided commercial liability insurance to GM Cargo, an over-the-road motor carrier company that operates on Kansas highways and elsewhere. By Kansas law, carriers who operate in this state are required to maintain a certain minimum level of liability insurance, and the Kansas Supreme Court has determined that a party injured by a motor carrier has a direct cause of action in tort against the insurer. Kirtland v. Tri-State Ins. Co., 220 Kan. 631, 556 P.2d 199 (1976). This is a procedural right, remedial in nature, that is designed to ensure adequate protection for members of the public from the negligent conduct of motor carriers on Kansas highways. Id. at 633-34.

 

1   Plaintiffs represent that neither Castlepoint nor its insured has produced a copy of the relevant policy. Dkt. 37 at 5.

Castlepoint’s activities in this sense are purposely directed at Kansas, as it collects premiums from GM Cargo and in exchange provides the required coverage for the carrier’s business operations in Kansas and elsewhere. Unlike some policies that exclude coverage in specified jurisdictions, Castlepoint does [*6]  not deny that its policy provides coverage for its insured’s operations in Kansas. Because the laws of Kansas allow a party injured by the negligence of a motor carrier to bring a direct action against the carrier’s insurer, Castlepoint had fair warning that it could be subjected to suit in Kansas from the operations of its insured in this state. Moreover, jurisdiction here does not depend, as Castlepoint suggests, on the unilateral actions of its insured, because Castlepoint purposefully directed its commercial activities toward the area of its insured’s operations, including those in Kansas, and it did so knowing that any injuries from its insured’s negligence in Kansas would be felt in this state. The fact that Castlepoint made a choice to insure trucking operations in Kansas, when it was on notice that it would be subject to direct suit for negligent injuries caused by its insured, takes this case out of the “unilateral activity of another party” or the “random,” “fortuitous” or “attenuated” contacts that were insufficient to support jurisdiction in Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984) and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). See TH Agriculture & Nutrition, LLC v. Ace European Group, Ltd., 488 F.3d 1282, 1290 (10th Cir. 2007) (“insurers quite clearly avail themselves of the privilege of conducting business in a forum state when that state is [*7]  included in an insurance policy’s territory of coverage”). Cf. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1095 (10th Cir. 1998) (although disagreeing “to some extent” with cases that fail to examine defendant’s actions or that rely too much on foreseeability, “we do agree that by contracting to defend the insured in the forum state, the insurer creates some contact with the forum state.”). See also Pugh v. Okla. Farm Bur. Mut. Ins. Co., 159 F.Supp. 155, 158-59 (E.D. La. 1958) (“Since the accident within the state is sufficient contact to justify maintenance of the suit for damages against the nonresident motorist, it would seem that the same accident should justify maintenance of the suit against his nonresident liability insurer who, after all, is the real party in interest.”). In sum, plaintiffs’ allegations show that Castlepoint has sufficient minimum contacts with Kansas and that the action arises out of those contacts.

The court further finds that the exercise of personal jurisdiction over Castlepoint is consistent with traditional notions of fair play and substantial justice. See TH Agriculture, 488 F.3d at 1292 (listing relevant factors). Among other things, the court notes that Castlepoint cites nothing concrete to suggest that defending the action in this forum would impose a significant burden on it; the State of Kansas has a significant interest [*8]  in providing a forum in which persons injured on its highways can seek redress; the plaintiffs have elected the convenience of a Kansas forum; Kansas appears to be the most efficient place to litigate the dispute; and the exercise of jurisdiction by Kansas over this matter will not adversely affect the policies of foreign states. Cf. Pugh, 159 F.Supp. at 159 (“Having agreed to cover Louisiana risks, [the insurer] cannot deny Louisiana courts the right to determine its liability on claims arising from accidents occurring in this state.”).

IT IS THEREFORE ORDERED this 26th day of May, 2016, that defendant Castlepoint Florida Insurance Company’s Motion to Dismiss (Dkt. 34) is DENIED.

/s/ J. Thomas Marten

1. THOMAS MARTEN, JUDGE

RAEBURN BEDFORD, PLAINTIFF v. JOHN DOE; and INTERNATIONAL PAPER COMPANY, DEFENDANTS

 

No. 2:15-CV-02039

 

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, FORT SMITH DIVISION

 

2016 U.S. Dist. LEXIS 70649

 

 

May 31, 2016, Decided

May 31, 2016, Filed

 

 

COUNSEL:  [*1] For Raeburn Bedford, Plaintiff: Phillip L. Votaw, LEAD ATTORNEY, Phil Votaw & Associates, Fort Smith, AR.

 

For International Paper Company, Defendant: David L. Jones, LEAD ATTORNEY, Michael A. Thompson, Wright Lindsey Jennings LLP, LIttle Rock, AR; Justin L. Bailey, LEAD ATTORNEY, International Paper, Memphis, TN.

 

JUDGES: P.K. HOLMES, III, CHIEF UNITED STATES DISTRICT JUDGE.

 

OPINION BY: P.K. HOLMES, III

 

OPINION

 

OPINION AND ORDER

Before the Court is Defendant International Paper Company’s (“International Paper”) motion for summary judgment. (Doc. 25). International Paper has filed a brief (Doc. 26) and a statement of undisputed facts (Doc. 27) in support of the motion. On April 22, 2016, Plaintiff Raeburn Bedford moved for an extension of time to file a response. On April 27, 2016, the Court granted Bedford’s motion in part, extending the time to respond until May 9, 2016. Rather than filing a response, on May 3, 2016, Bedford filed a motion (Doc. 30) for leave to designate an expert witness out of time, or in the alternative to dismiss his claims without prejudice. International Paper has filed a response (Doc. 31) in opposition to that motion. For the reasons set forth below, International Paper’s motion for summary [*2]  judgment will be granted.

 

1. Background

For the purpose of ruling on a motion for summary judgment, all material facts set forth in International Paper’s statement of facts (Doc. 27) are deemed admitted by Bedford pursuant to Local Rule 56.1(c).

Raeburn Bedford was a truck driver employed by Dancor Transit, Inc. (“DTI”). On October 16, 2014, Bedford transported a loaded trailer from the DTI yard in Van Buren, Arkansas, to Joplin, Missouri. When Bedford arrived at his destination in Joplin, he opened the trailer and was injured when cargo from inside the trailer fell onto him.

The trailer was loaded with cargo from International Paper Company. It had been loaded at International Paper’s facility in Fort Smith, Arkansas, by International Paper’s employee, Gerald Watkins, before being transported from the Fort Smith facility to DTI’s Van Buren lot by an unknown person.

Watkins had been loading cargo for International Paper or its predecessors for nearly two decades at the time of the accident, and during that time was regularly recertified on how to properly load a trailer. His last recertification was in June of 2014. Prior to the October 16, 2014 event, Watkins had never had a negative incident result from [*3]  his loading of cargo trailers. Bedford’s complaint alleges that Watkins loaded the cargo onto the trailer in a negligent manner, and that negligent loading was the proximate cause of the cargo falling on Bedford in Joplin, Missouri. Bedford further alleges that International Paper was negligent in failing to train its personnel in proper loading technique.

It is undisputed that cargo can shift and fall for numerous reasons other than improper loading. A truck driver’s driving habits can cause properly loaded cargo to shift in transport. Similarly, the terrain over which a trailer is hauled can cause properly loaded cargo to shift in transport. Safety equipment used to secure a load inside a cargo trailer can sometimes fail. Properly securing cargo with a safety strap is important to reduce the likelihood that cargo will shift in the event that other safety equipment fails. Typically, a safety strap is placed by the driver, who is provided the strap by his employer. DTI did not provide Bedford with a strap for this load, and so Bedford did not secure the cargo with a safety strap. When Bedford arrived in Joplin, he utilized improper procedure to open the cargo trailer. Bedford first [*4]  opened the passenger-side trailer door, and then opened the driver-side trailer door, standing in front of it as he opened it. Security camera footage of the event shows the inside of the trailer prior to Bedford opening the driver-side door, and cargo can be seen leaning against the door at that time.

Bedford filed this lawsuit in the Circuit Court of Sebastian County, Arkansas. International Paper removed, and on May 3, 2016, International Paper filed the instant motion. International paper argues that Bedford has no evidence that International Paper or its employees were negligent, and no evidence that negligent loading was the cause of the load shift that eventually led to Bedford’s injuries.

 

1. Analysis

When a party moves for summary judgment, it must establish both the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Nat’l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). In order for there to be a genuine issue of material fact, the non-moving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Only facts “that might affect the outcome of the suit under the governing law” need be considered. Anderson, 477 U.S. at 248. “[T]he non-movant [*5]  must make a sufficient showing on every essential element of its claim on which it bears the burden of proof.” P.H. v. Sch. Dist. of Kan. City, Mo., 265 F.3d 653, 658 (8th Cir. 2001) (quotation omitted).

Bedford’s decision not to respond to International Paper’s statement of facts operates as an admission of material facts under the local rules. International Paper has shown that there is no dispute of material fact. This leaves for analysis whether International Paper has shown that it is entitled to judgment as a matter of law on these facts. The governing law in this case is the state law of Arkansas. Bedford has asserted a cause of action for the tort of negligence.

 

With regard to negligence actions, the law of negligence requires as essential elements that the plaintiff show that a duty was owed and that the duty was breached. The question of what duty, if any, is owed a plaintiff alleging negligence is always a question of law and never one for the jury. Further, to make a prima facie cause of action based on negligence, a plaintiff must also show that he sustained damages, that the defendant was negligent, and that such negligence was the proximate cause of the damages. To prove negligence, a party must show that the defendant has failed to use the [*6]  care that a reasonably careful person would use under circumstances similar to those shown by the evidence in the case. Generally, if there is any conflict in the evidence, or the evidence is such that fair-minded people might have different conclusions, a jury question is presented and the granting of a directed verdict will be reversed.

 

 

Wagner v. Gen. Motors Corp., 370 Ark. 268, 258 S.W.3d 749, 753-54 (Ark. 2007) (citations omitted).

Material facts in this case are those that bear on whether Bedford can demonstrate the essential elements of the Arkansas tort of negligence. Bedford complained that International Paper’s employee was negligent in failing to secure the contents of the trailer and that International Paper was liable for this negligence on the theory of respondeat superior, and was separately negligent in directing its employee to use an improper or inadequate loading procedure and technique. On this motion Bedford has made no evidentiary showing that either International Paper or its employee breached a duty of care owed to Bedford. That is, Bedford has failed to show that any Defendant committed a negligent act. And while there is no dispute that Bedford was injured by a falling load when he opened his trailer door, Bedford is deemed to have admitted [*7]  the fact that other causes than negligence in the loading process could have led to the falling load, and Bedford has made no evidentiary showing that the falling load was caused by negligence in the loading process, let alone that this purported negligence was the proximate cause of his injuries. For its part, International Paper has identified several intervening causes that establish that this is not a case of res ipsa loquitor. It may be that this injury would not have occurred but for negligence, but because of the existence of plausible intervening causes, Bedford must put forth evidence that the cause of his injury was a Defendant’s negligence. Additionally, the undisputed facts establish that International Paper regularly trained its loading employees–in particular, Gerald Watkins–in proper loading technique. By leaving this fact undisputed, Bedford essentially concedes that International Paper is not independently liable for negligent training.

This is not a case where Bedford’s allegations can be weighed by a jury against the evidence International Paper has submitted on this motion. See Nat’l Bank of Commerce of El Dorado, Arkansas v. Dow Chemical Co., 165 F.3d 602, 607 (8th Cir. 1999) (“Once a party moving for summary judgment has made a sufficient showing, the burden [*8]  rests with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. It is not enough to rest on the pleadings and allegations.”). Bedford having failed to meet any part of his Rule 56 burden to show either a genuine dispute of material fact or that International Paper is not entitled to judgment as a matter of law on the undisputed facts, International Paper’s motion for summary judgment will be granted and Bedford’s claims against it will be dismissed with prejudice.

With the entry of judgment for International Paper, the only remaining defendant to this lawsuit is the fictitious defendant “John Doe.” It appears from the evidence submitted on this motion that Gerald Watkins is the John Doe defendant Bedford intended to sue. However, Bedford has made no attempt to amend his complaint to properly identify “John Doe,” and it has been approximately 16 months since Bedford filed his complaint without John Doe being served as required by Federal Rule of Civil Procedure 4. At least since removal it appears that Bedford has all but abandoned his complaint against John Doe, and has been content to proceed in this lawsuit as if International Paper were [*9]  the sole defendant. The Court finds, therefore, that all claims against John Doe should be dismissed without prejudice under Rule 4(m).

Bedford’s pending motion for leave to designate an expert witness out of time, or in the alternative to dismiss without prejudice, will be denied as moot. The Court notes, however, that if there were a need to separately consider that motion it would be denied on its merits. At this late juncture it would be prejudicial to International Paper to allow expert discovery, particularly since discovery has otherwise been completed, International Paper has filed the instant motion for summary judgment, and both parties have already begun trial preparations.

 

III. Conclusion

IT IS THEREFORE ORDERED that Defendant International Paper Company’s motion for summary judgment (Doc. 25) is GRANTED. All claims against International Paper Company will be DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that all claims against John Doe are DISMISSED WITHOUT PREJUDICE.

Judgment will be entered accordingly.

IT IS FURTHER ORDERED that Plaintiff Raeburn Bedford’s pending motion for leave to designate an expert witness out of time or dismiss without prejudice (Doc. 30) is DENIED AS MOOT. [*10]

IT IS SO ORDERED this 31st day of May, 2016.

/s/ P.K. Holmes, III

P.K. HOLMES, III

CHIEF U.S. DISTRICT JUDGE

JUDGMENT

For the reasons set forth in the Court’s opinion and order filed this same date, IT IS ORDERED AND ADJUDGED that Plaintiff’s claims against Defendant International Paper Company are DISMISSED WITH PREJUDICE.

Plaintiff’s claims against Defendant John Doe are DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED AND ADJUDGED this 31st day of May, 2016.

/s/ P.K. Holmes, III

P.K. HOLMES, III

CHIEF U.S. DISTRICT JUDGE