Benjamin Odneal, Appellant-Plaintiff, v. Circle Medical Management, Appellee-Defendant

 

Court of Appeals Case No. 45A03-1609-CT-2037

 

COURT OF APPEALS OF INDIANA

 

2017 Ind. App. Unpub. LEXIS 92

 

 

January 31, 2017, Decided

January 31, 2017, Filed

 

 

NOTICE:    PURSUANT TO INDIANA APPELLATE RULE 65(D), THIS MEMORANDUM DECISION SHALL NOT BE REGARDED AS PRECEDENT OR CITED BEFORE ANY COURT EXCEPT FOR THE PURPOSE OF ESTABLISHING THE DEFENSE OF RES JUDICATA, COLLATERAL ESTOPPEL, OR THE LAW OF THE CASE.

 

PRIOR HISTORY:     [*1] Appeal from the Lake Superior Court. The Honorable William E. Davis, Judge. Trial Court Cause No. 45D05-1408-CT-155.

 

COUNSEL: ATTORNEY FOR APPELLANT: Steven W. Etzler, Malloy Etzler & Lawhead, P.C., Highland, Indiana.

 

ATTORNEYS FOR APPELLEE: Francis A. Veltri, Travelers Staff Counsel Indiana, Merrillville, Indiana; Paul T. Belch, Travelers Staff Counsel Indiana, Indianapolis, Indiana.

 

JUDGES: Baker, Judge. Mathias, J., and Pyle, J., concur.

 

OPINION BY: Baker

 

OPINION

 

MEMORANDUM DECISION

Baker, Judge.

P1 Benjamin Odneal appeals the trial court’s grant of summary judgment in favor of Circle Medical Management (Circle Medical). He argues that the trial court incorrectly determined that Circle Medical did not owe him a duty. Finding that summary judgment was appropriately granted, we affirm.

 

Facts

P2 Odneal was an employee of Stericycle, Inc. (Stericycle), a medical waste processing facility. Stericycle did business with Circle Medical, a dialysis treatment center. In providing dialysis treatment, Circle Medical used and needed to dispose of spent bloodlines, needles, syringes, and other medical waste. Accordingly, Circle Medical entered into a Service Agreement with Stericycle’s predecessor1 in May 2009. Stericycle would provide Circle [*2]  Medical with containers, Circle Medical would fill the containers with medical waste, and Stericycle would transport those containers to its disposal facility.

 

1   For ease of reading, we will refer to this predecessor simply as Stericycle.

P3 Pursuant to the Service Agreement, these containers were 96-gallon carts. The Service Agreement provided that “[t]o ensure compliance with packaging requirements and the safety of Service Provider’s employees, Service Provider reserves the right to charge a minimum overweight penalty of $0.65 per lb. when weights exceed 40 lbs. per container.” Appellant’s App. p. 195. Stericycle provided an information sheet to Circle Medical that said that the maximum weight of the containers when full of waste should be no more than 150 pounds. Appellant’s App. 222.

P4 On August 30, 2012, Stericycle retrieved five waste containers from Circle Medical, each of which weighed more than 150 pounds. Once the containers were transported to Stericycle’s facility, Odneal started to pick up one of the containers but realized that it was too heavy for him to lift. He asked a coworker for help. As the two began picking the container up, the container went off balance and Odneal was pulled into a railing. He suffered a lower back injury, which required two [*3]  lumbar surgeries and a spinal implant to rectify.

P5 On August 15, 2014, Odneal filed a complaint against Circle Medical, claiming that Circle Medical owed him a duty to avoid overfilling its waste containers and that its breach of that duty caused his injury. On May 31, 2016, Circle Medical filed a motion for summary judgment along with designated evidence, to which Odneal responded. After a hearing, the trial court entered summary judgment in Circle Medical’s favor on August 15, 2016. Odneal now appeals.

 

Discussion and Decision

P6 Our standard of review of a trial court’s grant of summary judgment is well settled:

 

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. When we review a grant of summary judgment, our standard of review is the same as that of the trial court. We consider only those facts that the parties designated to the trial court. The Court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmovant, and resolve all doubts against the moving party.

A trial court’s order on summary judgment is cloaked with a presumption [*4]  of validity; the party appealing from the grant of summary judgment must bear the burden of persuading this Court that the decision was erroneous. We may affirm the grant of summary judgment upon any basis argued by the parties and supported by the record.

 

 

Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App. 2007) (internal citations omitted). To prove negligence, Odneal is required to show, among other things, that Circle Medical owed him a duty. Mishler v. State, 730 N.E.2d 229, 231 (Ind. Ct. App. 2000). Absent a duty, there can be no breach of duty and no recovery in negligence. Id. Whether a duty exists is generally a question of law. Id.

P7 We find our decision in Ebbinghouse v. FirstFleet, Inc., 693 N.E.2d 644 (Ind. Ct. App. 1998), to be instructive. In that case, the plaintiff worked for a distribution company, which contracted with trucking companies to send goods to their final destinations. Id. at 646. One day, the trucking company returned a trailer to the distribution company, and as the plaintiff unloaded and cleaned it, she slipped on a lid that had fallen on the ground. Id. She sued the trucking company for negligence, but the trial court granted summary judgment against her. Id.

P8 In affirming the trial court, we recognized that while employers have a general duty to use reasonable care to provide their own employees with a safe work environment, employers do [*5]  not owe such a general duty to the employees of other companies. Id. at 647. We noted that after the trucking company returned the trailer,

 

it was the sole responsibility of [the distributor] to open the sealed trailer, to unload any returned merchandise, and to clean the trailer of the empty totes, lids, and pallets. [The trucking company] had no discretion to inspect the condition of the interior of the trailers upon arrival at [the distributor] and similarly had no control over how [the distributor]’s employees carried out their responsibility to unload and clean the trailers.

 

 

Id. After also finding that the accident was not foreseeable and that public policy did not support finding a duty, we affirmed. Id. at 648.

P9 In that case, however, we noted the following:

 

We find nothing in the record that indicates that [the trucking company] was required by [the distributor] to strap down the totes and lids or that [the trucking company] otherwise assumed a duty to strap down the totes and lids. Even if we were to conclude that [the trucking company] was required to take such precautions or voluntarily undertook them, there is no evidence that such action was for the benefit or safety of [the distributor]’s [*6]  employees.

 

 

Id. In the present case, Odneal focuses on the language in the Service Agreement that provided Stericycle with the right to charge an “overweight penalty of $0.65 per lb. when weights exceed 40 lbs. per container,” the purpose of which was “[t]o ensure compliance with packaging requirements and the safety of Service Provider’s employees . . . .” Appellant’s App. p. 195. Odneal points out that a duty of care, the breach of which will support a negligence action, may arise contractually. Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1218 (Ind. Ct. App. 1983). In determining whether a duty exists, this Court will give effect to the intent of the parties as reflected by the language of the document. Id. Odneal argues that this provision in the contract evinces Circle Medical’s intent to assume a duty to Stericycle’s employees to avoid overfilling the containers.

P10 Odneal spends much of his brief attempting to prove that this provision was not intended to compensate Stericycle for the added costs of heavier containers but was rather intended solely to penalize Circle Medical for overheavy shipments. We cannot agree with this argument, as the two concepts are economically indistinguishable. It is impossible to say that the provision does one or the other; [*7]  it clearly does both. On the one hand, by requiring extra payment for containers weighing over forty pounds, it discourages Circle Medical from filling its containers with more than forty pounds of waste. On the other hand, it also makes clear that Circle Medical is perfectly within its rights to fill containers with more than forty pounds of waste, so long as Circle Medical is willing to pay the extra charge.

P11 We find the existence of added compensation dispositive. If the Service Agreement had said that Circle Medical, for the safety of Stericycle’s employees, agreed to not fill the containers beyond a certain weight, then Circle Medical would have assumed a duty not to do so. But the Service Agreement instead set a price for added weight–in such a circumstance, Circle Medical’s only duty regarding the weight of the containers was to pay the added cost of any containers weighing more than forty pounds. Other than the existence of this pricing mechanism, we find the present case to be on all fours with Ebbinghouse.

P12 Odneal also argues that he was owed a duty as a third-party beneficiary of the Service Agreement between Circle Medical and Stericycle. A third-party beneficiary contract [*8]  exists when (1) the parties intend to benefit the third party, (2) the contract imposes a duty on one of the parties in favor of the third party, and (3) the performance of the terms of the contract renders a direct benefit to the third party intended by the parties to the contract. Gilliana v. Paniaguas, 708 N.E.2d 895, 898 (Ind. Ct. App. 1999). A party may use his status as a third-party beneficiary as the basis of a duty in a negligence context. St. Paul Fire & Marine Ins. Co. v. Pearson Constr. Co., 547 N.E.2d 853, 857 (Ind. Ct. App. 1989).

P13 We find that Odneal is not a third-party beneficiary of the Service Agreement because any benefits that accrue to him do so remotely, not directly. Circle Medical and Stericycle did not contract together with the primary goal of providing safety to Odneal; they contracted together with the primary goal of exchanging a service for compensation. Although there is arguably some benefit that Odneal receives from the contract–perhaps the financial disincentive will encourage Circle Medical to pack the containers lightly, which in turn will make Odneal’s job safer and easier–this is far from the type of direct benefit required to create a third-party beneficiary contract. Accordingly, this argument is unavailing.

P14 In sum, Circle Medical did not agree to refrain from filling containers with more than [*9]  forty pounds of material, it agreed to pay an extra fee for doing so. Therefore, as a matter of law, Circle Medical did not owe Odneal a duty to not fill the containers with overheavy contents. Nor was Odneal a third-party beneficiary of the Service Agreement. Because Circle Medical did not owe Odneal any duty, it cannot be held liable for negligence and summary judgment was appropriately granted.

P15 The judgment of the trial court is affirmed.

Mathias, J., and Pyle, J., concur.

 

 

TONJA R. WRIGHT VERSUS NATIONAL INTERSTATE INSURANCE COMPANY ET AL

 

CIVIL ACTION NO. 16-16214 SECTION “L”

 

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

 

2017 U.S. Dist. LEXIS 9529

 

 

January 24, 2017, Decided

January 24, 2017, Filed

 

 

COUNSEL:  [*1] For Tonja R. Wright, individually and on behalf of her minor son N.J., Plaintiff: John Bartholomew Kelly, III, LEAD ATTORNEY, Amy Collins Fontenot, Jeanne K. Demarest, Kurt A. Offner, Roderick Alvendia, Alvendia, Kelly, & Demarest, LLC, New Orleans, LA.

 

For National Interstate Insurance Company, Mabe Trucking Company, Inc., Terry Tearle Poole, Defendants: Guy D. Perrier, LEAD ATTORNEY, Mitchell D. Monsour, Jr., Nathan M. Gaudet, Perrier & Lacoste, LLC, New Orleans, LA.

 

For Allstate Insurance Company, Defendant: David Henry Kennedy, LEAD ATTORNEY, Law Offices of Harold G. Toscano (Metairie), Metairie, LA.

 

JUDGES: Eldon E. Fallon, UNITED STATES DISTRICT JUDGE.

 

OPINION BY: Eldon E. Fallon

 

OPINION

 

ORDER & REASONS

Before the Court is Plaintiff’s Motion to Remand. R. Doc. 8. Having reviewed the parties’ briefs and the applicable law, the Court now issues this Order & Reasons.

 

1. BACKGROUND

This case arises out of an automobile accident. On September 9, 2015, Plaintiff Tonja Wright (“Wright” or “Plaintiff”) was operating her 2011 Ford Escape in Tangipahoa Parish, Louisiana, when she was struck by a 2015 Kenilworth tractor and trailer owned by Defendant Mabe Trucking Company, Inc. (“Mabe”), and operated by Defendant Terry Tearle [*2]  Poole (“Poole”). R. Doc. 1-1 at 2. Wright also brings this case on behalf of her minor son Noah Jackson (“Jackson”), who was travelling with her in the car at the time of the alleged accident. In her motion, Plaintiff provides a list of communications regarding her injuries between herself and Mabe’s and Poole’s insurer, Defendant National Insurance Company, from November 13, 2015, to August 8, 2016. R. Doc. 8-1 at 2-3.

Plaintiff filed suit in state court on August 23, 2016, seeking damages for past and future mental and physical pain and suffering, property damage, loss of use of vehicle, depreciation, rental expenses, medical expenses, loss of past earnings, loss of future earning capacity, disability, scarring and disfigurement, loss of consortium, and penalties and attorneys’ fees. R. Doc. 1-1 at 1, 4. While La. Code Civ. Proc. Art. 893(A)(1) prohibits plaintiffs from alleging a specific amount of monetary damages, Plaintiff could have stated in her initial complaint that the amount in controversy satisfied, or failed to satisfy, federal jurisdiction requirements. In her pleading, Plaintiff referred to her injuries as “severe and disabling,” without elaborating on the nature of the injuries. Id. at 3. On November 1, 2016, [*3]  Defendants received medical records in response to a subpoena that indicated Plaintiff had undergone cervical fusion surgery. R. Doc. 1 at 4. Defendants filed their notice of removal from state court on November 9, 2016, maintaining that Plaintiff’s damages could reasonably exceed $75,000. Id. at 4, 6.

 

1. PRESENT MOTION

Plaintiff Wright filed the present Motion to Remand. R. Doc. 8. Wright maintains that Defendants’ removal was untimely, and asks this Court to remand the present action to state court. Id. at 1. Wright does not dispute that the parties are diverse and the amount in controversy exceeds $75,000, but contests the timeliness of the Notice of Removal. R. Doc. 8-1 at 4.

 

1. Plaintiff’s Motion to Remand

Wright provided correspondence between the parties prior to the commencement of the case detailing her injury and medical care. R. Doc. 8-1 at 2-3; R. Docs. 8-2; 8-3; 8-4; 8-5. Based on this correspondence, she claims that Defendants were aware of her cervical fusion surgery as of August 8, 2016, and should have been aware that damages in a cervical fusion case would exceed $75,000. Id. at 5. Plaintiff cites Fifth Circuit precedent holding that settlement letters are considered “other paper” for the purposes of the commencement [*4]  of time for removal, thus rendering Defendants’ Notice of Removal untimely. Id. at 5.

 

1. Defendants’ Opposition

Defendants oppose the motion to remand and contend that the provisions of 28 U.S.C. § 1332 and 1441 are satisfied. R. Doc. 9 at 2.

Relying on 28 U.S.C. 1446(b)(3), Defendants argue that because Plaintiff’s state court petition did not affirmatively reveal on its face that the damages sought were in excess of $75,000, it was not removable at that time. Id. at 3 (citing Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992)). Accordingly, Defendants maintain this Court must evaluate whether it became removable at a later time. Id. Relying on precedent from this Court, Defendants argue that none of Plaintiff’s communications regarding her injuries prior to filing the state court action were legally sufficient to start the clock. R. Doc. 9 at 3-4.

Defendants maintain that the Notice of Removal was filed within thirty days of their receipt of “other paper” and thus timely under 28 U.S.C. § 1446(b)(3). R. Doc. 9 at 5. Defendants agree with Plaintiffs that a settlement demand may be considered “other paper,” but note that they never received a settlement demand, and that settlement demands must be received after the initial demand to constitute “other paper.” R. Doc. 9 at 6. Defendants rely on Plaintiffs’ medical [*5]  records obtained on November 1, 2016, as the first receipt of “other paper” indicating that damages would be greater than $75,000. R. Doc. 9 at 6. Using this date, Defendants contend that their November 9, 2016, Notice of Removal was within the thirty-day removal deadline. R. Doc. 9 at 6.

 

III. LAW AND ANALYSIS

 

1. Applicable Law

A defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction over the issue. 28 U.S.C. § 1441(a). A federal court would have original jurisdiction over cases involving complete diversity of diversity of citizenship among the parties where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).

28 U.S.C. § 1446 creates two distinct thirty-day filing deadlines for a notice of removal. In Chapman v. Powermatic, Inc., the Fifth Circuit held that this provision creates a two-step test to analyze the timeliness of removal. 969 F.2d 160, 161 (5th Cir. 1992). First, a court must determine if the case was removable when initially filed:

 

[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or [*6]  within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

 

 

28 U.S.C. § 1446(b)(1)

The Fifth Circuit established in Chapman that, to be removable under § 1446(b)(1), a pleading must affirmatively reveal on its face that the plaintiff seeks damages in excess of $75,000. 969 F.2d at 163 (reaffirmed by Mumfrey v. CVS Pharmacy, 719 F.3d 392, 400 (5th Cir. 2013)). A defendant’s subjective knowledge of the amount of damages is not enough to convert a non-removable action into a removable one. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996).

If the action is not removable when initially filed, the court then evaluates if the case became removable at a later time. Section 1446(b)(3) provides that:

 

[e]xcept as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

 

 

Thus, a case is removable upon the defendant’s receipt of “other paper” from which the amount of damages sought may first be ascertained. To trigger the removal timer, the information contained in the [*7]  “other paper” must be “unequivocally clear and certain.” Bosky v. Kroger Texas, LP, 288 F.3d 208 (5th Cir. 2002). “[O]ther paper” must also be “received by a defendant only after that defendant has received the initial pleading.” Chapman, 969 F.2d at 164. If a case is originally not removable for reasons concerning amount in controversy, responses to discovery are considered “other paper.” § 1446(c)(3).

 

1. Discussion

Defendant’s removal in this case is only timely if: (1) the timing provision of 28 U.S.C. § 1446(b)(1) was not triggered by Plaintiff’s initial pleading; and (2) if the timing provision of § 1446(b)(3) was triggered on or after October 10, 2016.

 

1. Section 1446(b)(1) and Plaintiff’s Complaint

Plaintiff’s initial complaint did not trigger the timing provisions of § 1446(b)(1) because the pleading did not affirmatively reveal on its face that Plaintiff sought damages in excess of $75,000. In the Fifth Circuit, the initial pleading can only trigger the thirty-day removal time period if the “pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court.” Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992). Plaintiff sought damages for “past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, property damage, loss of use of [*8]  vehicle, depreciation, rental expenses, medical expenses, loss of past earnings, loss of future earning capacity, permanent disability of the body, scarring and disfigurement, loss of consortium and penalties and attorney’s fees” for her “severe and disabling injuries.” R. Doc. 1-1 at 3-4. Plaintiff did not include “a specific allegation that damages are in excess of the federal jurisdictional amount” in this initial pleading, and thus the initial pleading did not, on its face, trigger the removal timer. Chapman, 969 F.2d at 163.

Plaintiff’s cited cases involve amount disputes, not timeliness disputes. R. Doc. 8-1 at 4 (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (“the sole jurisdictional issue is whether the district court erred in deciding the amount in controversy exceeded $75,000”); White v. FCI USA, Inc., 319 F.3d 672, 673-74 (“Plaintiff…asserts the district court erred in finding the…amount-in-controversy requirement satisfied”); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1330 (“plaintiffs…question the application of the amount-in-controversy standard”)). The Fifth Circuit has held that a “facially apparent” argument is relevant only to amount dispute cases, and specifically disavowed the applicability of Luckett v. Delta Airlines, Inc. in timeliness disputes. See Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 400 (5th Cir. 2013). Plaintiff admits that the amount in controversy exceeds [*9]  $75,000, and relies on the argument that the Notice of Removal was untimely to justify remand to state court; thus, the cited cases do not support Plaintiff’s argument for remand.

Plaintiff’s argument regarding damage awards for similarly-situated plaintiffs is also inapposite — Plaintiff did not detail her injuries in her initial complaint. R. Doc. 8-1 at 5. The Chapman inquiry focuses on the text of the pleading, not the defendant’s subjective knowledge. 969 F.2d at 163 (“We adopt this rule because we conclude that it promotes certainty and judicial efficiency by not requiring courts to inquire into what a particular defendant may or may not subjectively know.”)

 

1. Section 1446(b)(3) and Plaintiff’s Subpoena Response

Defendant’s removal was timely under § 1446(b)(3), because Defendant’s November 9, 2016, Notice of Removal was filed within thirty days of Defendant’s November 1, 2016, receipt of “other paper” which triggered the thirty-day removal period. “Other paper” can trigger the thirty-day timer under § 1446(b)(3) if it is received after the initial complaint and is “unequivocally clear and certain” regarding the information supporting removal. Bosky, 288 F.3d at 211. Defendant received “unequivocally clear and certain” notice that Plaintiff’s damages would [*10]  exceed $75,000 on November 1, 2016 in medical records obtained through a subpoena response. R. Doc. 9 at 5. Defendants filed their Notice of Removal on November 9, 2016, within the thirty-day time period triggered by this “other paper,” and is therefore timely.

Plaintiff’s correspondence with Defendants prior to August 23, 2016, does not constitute “other paper” capable of triggering the removal provision. As discussed in this Court’s recent ruling in Oniate v. State Farm Mutual Automobile Insurance Company, Chapman holds that an “other paper” must be “received by a defendant only after that defendant has received the initial pleading.” Chapman, 969 F.2d at 164; Oniate, 2:15-CV-6431 (E.D. La. 1/20/16); 2016 U.S. Dist. LEXIS 6498, 2016 WL 232437. None of the correspondence between Plaintiff and Defendants discussing medical treatment and expenses qualify as “other paper” because they were received prior to the August 23, 2016 initial pleading in state court. Therefore, Plaintiff’s argument is unpersuasive.

 

1. CONCLUSION

For the aforementioned reasons, IT IS ORDERED that Plaintiff’s Motion to Remand, R. Doc. 8, is hereby DENIED.

New Orleans, Louisiana, this 24th day of January, 2017.

/s/ Eldon E. Fallon

UNITED STATES DISTRICT JUDGE