2018 WL 3424302

United States District Court, S.D. Indiana, Evansville Division.
Michael J. SMITH, et al., Plaintiffs,
v.
TRIPLE B TRUCKING, LLC, et al., Defendants.
No. 3:16-cv-00194-MPB-RLY
|
Signed 07/16/2018
Attorneys and Law Firms
Neil B. Chapman, Stephen Hensleigh Thomas, Noah Cartwright Thomas, Chapman Law LLC, Evansville, IN, for Plaintiffs.
April M. Jay, Overhauser Law Offices LLC, Greenfield, IN, Eric A. Laue, Jessica N. Hamilton, James H. Milstone, Leslie B. Pollie, Kopka, Pinkus Dolin PC, Carmel, IN, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Matthew P. Brookman, United States Magistrate Judge
*1 This matter, an action brought by Plaintiffs against Peterson and Triple B. Trucking, LLC, alleging negligence, negligence per se and loss of consortium, was called for a bench trial on July 9, 2018. (Docket No. 86). Plaintiffs Michael J. Smith and Marcia Smith appeared in person and by Counsel Stephen H. Thomas and Noah C. Thomas. Defendants Triple B Trucking, LLC and Gregory Peterson appeared by Counsel Jessica N. Hamilton and James H. Milstone.1 For purposes of trial, the parties filed an agreed stipulation of facts.2 (Docket No. 85). Being duly advised, the court now enters its Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT
1. On August 13, 2015, Michael Smith, Gregory Peterson, and six (6) other drivers were involved in a motor vehicle collision on U.S. Highway 41 in Gibson County, Indiana.

2. The Collision occurred at or near the intersection of County Road 800 S and U.S. Highway 41 S in Gibson County, Indiana (the “Intersection”).

3. At or near the Intersection, U.S. Highway 41 S has two (2) southbound straight lanes and one (1) right turn lane and one (1) left turn lane.

4. Immediately prior to the Collision, Michael Smith’s Jeep Wrangler was stopped in the right straight lane in a line of vehicles yielding to the red light.

5. Immediately prior to the Collision, Gregory Peterson’s semi tractor-trailer was travelling southbound towards the line of vehicles yielding to the red light.

6. While approaching the line of vehicles yielding to the red light, Gregory Peterson’s cell phone fell in between the brake pedal and gas pedal.

7. While approaching the line of vehicles yielding to the red light, Gregory Peterson looked down in an attempt to locate his cell phone.

8. Gregory Peterson did not stop in time to avoid a collision with the line of vehicles yielding to the red light in the southbound lane of U.S. Highway 41 S.

9. Gregory Peterson’s semi tractor-trailer struck the rear of the vehicle immediately in front of him.

10. Gregory Peterson’s striking of the vehicle in front of him caused that vehicle to strike the next vehicle in line.

11. The next vehicle in line struck the vehicle behind Michael Smith’s Jeep Wrangler.

12. After striking the last vehicle in the line of vehicles yielding to the red light, Gregory Peterson’s semi tractor-trailer veered from the right lane of travel and passed the three vehicles as they collided with one another.

13. Gregory Peterson’s semi tractor-trailer then re-entered the right lane of travel and directly struck the rear of Michael Smith’s Jeep Wrangler.

*2 14. Gregory Peterson’s striking of the rear of Michael Smith’s Jeep Wrangler caused Michael Smith’s Jeep Wrangler to strike the vehicle in front of it.

15. The vehicle in front of Michael Smith’s Jeep Wrangler struck the next vehicle in line, which in turn struck the final vehicle in the line.

16. At the time of the Collision, Gregory Peterson was acting as an employee or agent of Defendant, Triple B Trucking, LLC.

17. Michael Smith was injured as a result of the Collision.

18. Michael Smith incurred in excess of $100,000.00 in paid medical expenses due to his injuries from the Collision.

19. On the date of the Collision, Michael Smith was employed by Toyota Motor Manufacturing Indiana.

20. Michael Smith, via affidavit, attested that according to his Social Security Earnings Statement he earned an average of $68,523.36 per year during the ten-year period preceding August 13, 2015.

21. Michael Smith further attested that he has been unable to return to his job at Toyota Motor Manufacturing Indiana since the motor vehicle collision of August 13, 2015.

22. On the date of the Collision, Michael Smith was fifty-five (55) years old.

23. Plaintiffs requested the Court enter a judgment in the amount of $500,000.00 (five hundred thousand dollars) against Defendants Gregory Peterson and Triple B Trucking, LLC and in favor of Plaintiffs Michael Smith and Marcia Smith.

II. CONCLUSIONS OF LAW
1. The court has jurisdiction over this case pursuant to 28 U.S.C. § 1332.

2. This is a diversity case filed in the state of Indiana. Therefore, the Indiana rules of negligence apply. Carson v. ALL Erection & Crane Rental Corp., 811 F.3d 993, 995 (7th Cir. 2016).

3. To prevail in a negligence action, “the plaintiff must prove a: (1) duty owed to plaintiff by defendant; (2) breach of the duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury that was proximately caused by defendant’s breach of duty.” Hassan v. Begley, 836 N.E.2d 303, 307 (Ind. App. 2005) (citation omitted). A negligent act is the proximate cause of an injury if the injury is a natural and probable consequence, which in light of the circumstances, should have been foreseen or anticipated. Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000).

4. Vicarious liability will be imposed upon an employer under the doctrine of respondeat superior “where the employee has inflicted harm while acting ‘within the scope of employment.’ ” Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008). To fall within the scope of employment, “the injurious act must be incidental to the conduct authorized or it must, to an appreciable extent, further the employer’s business.” Id. An act “is incidental to authorized conduct when it ‘is subordinate to or pertinent to an act which the servant is employed to perform,’ or when it is done ‘to an appreciable extent, to further his employer’s business.’ ” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (quoting Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000) ) (internal citations omitted).

5. Gregory Peterson had a duty to maintain a proper lookout, to use due care to avoid a collision, and to maintain his vehicle under reasonable control. Smith v. Beaty, 639 N.E.2d 1029, 1032 (Ind. Ct. App. 1994).

*3 6. Gregory Peterson breached this duty by looking down in an attempt to locate his cell phone, resulting in a failure to keep a lookout; failure to slow the vehicle as he approached the line of vehicles yielding to the red light in the southbound lane of U.S. Highway 41 S; and driving while distracted.

7. As a direct and proximate result of Gregory Peterson’s negligence, Michael Smith was injured in excess of $100,000 in paid medical expenses.

8. Triple B Trucking, LLC is vicariously liable under the theory of respondeat superior as Gregory Peterson was acting as an employee or agent of Triple B Trucking, LLC, at the time of the Collision. At the time of the Collision, Gregory Peterson was an employee or agent for Triple B Trucking, LLC, and was driving the semi tractor-trailer in furtherance of Triple B Trucking, LLC’s business.

9. Pursuant to the evidence presented to the Court, Plaintiffs’ injuries, including medical expenses, lost wages, and permanent impairment of the power to earn money, and physical pain and mental pain and suffering, amount to $500,000.00. Defendants are jointly and severally liable for the judgment. Biel, Inc. v. Kirsch, 153 N.E.2d 140, 143 (Ind. Ct. App. 1958).

III. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiffs Michael J. Smith and Marcia Smith are entitled to a judgment in the amount of $500,000.00 against Defendants Gregory Peterson and Triple B Trucking, LLC, jointly and severally. Final judgment will enter accordingly.

SO ORDERED.
All Citations
Slip Copy, 2018 WL 3424302

Footnotes

1
The parties consented to the magistrate judge conducting all proceedings and ordering the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

2
In light of this agreed stipulation of facts, the Court finds Defendants’ Motion in Limine (Docket No. 52), Plaintiffs’ Motion in Limine (Docket No. 58), and Defendants’ Motion to Bar Plaintiff’s Supplemental Medical Evidence (Docket No. 76) shall be DENIED as moot.

2018 WL 3383595
Supreme Court,
Appellate Division, Third Department, New York.
Brian P. CARR, Appellant,
v.
Michael R. HAAS et al., Defendants,
and
Marsh USA, Inc., et al., Respondents.
525461
|
Calendar Date: May 29, 2018
|
Decided and Entered: July 12, 2018
Attorneys and Law Firms
Brian Carr, Albany, appellant pro se.
Goldberg Segalla LLP, Albany (William H. Baaki of counsel), for Marsh USA, Inc., respondent.
Traub Lieberman Straus and Shrewsberry LLP, Hawthorne (Gregory Perrotta of counsel), for Greenwich Insurance Company and another, respondents.
Before: Garry, P.J., McCarthy, Clark, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER
Clark, J.
*1 Appeals (1) from an order of the Supreme Court (Ryba, J.), entered December 23, 2016 in Albany County, which, among other things, granted certain defendants’ motions for dismissal of the amended complaint against them, and (2) from an order of said court, entered August 7, 2017 in Albany County, which finalized a stipulation of discontinuance.

In December 2015, plaintiff’s car was allegedly damaged when it was struck by a tractor trailer owned by defendant Brenntag Northeast, Inc., a subsidiary of defendant Brenntag North America, Inc. (hereinafter collectively referred to as Brenntag), driven by defendant Michael R. Haas, Brenntag’s employee, and insured by defendants Greenwich Insurance Company and XL Insurance America, Inc. (hereinafter collectively referred to as XL Insurance). As a result, plaintiff commenced the instant action asserting a direct cause of action for property damage against Haas, Brenntag and XL Insurance and a second cause of action sounding in fraud, premised upon a purported scheme to withhold the true identity of the tractor trailer’s insurer, against all named defendants except Haas. Defendant Marsh USA, Inc., Brenntag’s insurance broker, defendant Sedgwick Claims Management Service, Inc., Brenntag’s claims adjuster, and XL Insurance separately moved for dismissal of the amended complaint (see CPLR 3211, 3212). Plaintiff opposed all three motions and also cross-moved to amend his amended complaint and to compel certain disclosure from Haas, Brenntag and Marsh USA. In December 2016, Supreme Court granted the motions by Marsh USA, Sedgwick and XL Insurance, dismissing the amended complaint against them, and denied plaintiff’s cross motion in its entirety.1 In August 2017, following settlement negotiations and upon plaintiff’s consent, Supreme Court finalized a stipulation of discontinuance, discontinuing all causes of action, with prejudice, against Haas, Brenntag and Sedgwick. Plaintiff appeals from both the December 2016 order and the August 2017 order.

Initially, plaintiff’s appeal from Supreme Court’s August 2017 order must be dismissed, as no appeal lies from an order entered upon consent (see CPLR 5511; Matter of O’Sullivan v. Schebilski, 138 A.D.3d 1170, 1172, 30 N.Y.S.3d 351 [2016]; Matter of Daniel B., 127 A.D.3d 1178, 1179, 5 N.Y.S.3d 911 [2015]; Cooper v. Number 535 Park Ave., 73 A.D.3d 433, 434, 899 N.Y.S.2d 599 [2010]; United Tit. Agency, LLC v. Surfside–3 Mar., Inc., 65 A.D.3d 1134, 1134, 885 N.Y.S.2d 334 [2009] ). As the August 2017 order discontinued the instant action against Haas, Brenntag and Sedgwick only, we will evaluate the December 2016 order only as to XL Insurance and Marsh USA (hereinafter collectively referred to as defendants).

*2 Turning to the December 2016 order, we agree with Supreme Court that plaintiff lacks standing to sue XL Insurance for payment of his property damages claim. It is well-established that a plaintiff has no common-law right to seek relief directly from a tortfeasor’s insurer due to the lack of privity between them (see Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 353–354, 787 N.Y.S.2d 211, 820 N.E.2d 855 [2004]; GM Broadcasting, Inc. v. Cornelius Enters., LLC, 156 A.D.3d 1038, 1039–1040, 66 N.Y.S.3d 548 [2017]; National Union Fire Ins. Co. of Pittsburgh, Pa. v. State of New York, 72 A.D.3d 620, 620–621, 901 N.Y.S.2d 176 [2010], lv denied 16 N.Y.3d 703, 2011 WL 135684 [2011] ). Insurance Law § 3420 creates a limited statutory cause of action on behalf of injured parties directly against insurers, but that provision is only applicable where the injured party has obtained a judgment against the insured and the judgment has gone unsatisfied for 30 days (see Insurance Law § 3420[b][1]–[3]; Lang v. Hanover Ins. Co., 3 N.Y.3d at 354, 787 N.Y.S.2d 211, 820 N.E.2d 855; GM Broadcasting, Inc. v. Cornelius Enters., LLC, 156 A.D.3d at 1040, 66 N.Y.S.3d 548). Here, it is undisputed that plaintiff has not obtained a judgment against Brenntag, which is a condition precedent to a direct suit against XL Insurance as Brenntag’s insurer; thus, plaintiff cannot avail himself of the limited statutory cause of action (see Lang v. Hanover Ins. Co., 3 N.Y.3d at 355, 787 N.Y.S.2d 211, 820 N.E.2d 855; GM Broadcasting, Inc. v. Cornelius Enters., LLC, 156 A.D.3d at 1040, 66 N.Y.S.3d 548; National Union Fire Ins. Co. of Pittsburgh, Pa. v. State of New York, 72 A.D.3d at 621, 901 N.Y.S.2d 176; Azad v. Capparelli, 51 A.D.3d 956, 956, 858 N.Y.S.2d 393 [2008] ).

We also agree with Supreme Court that plaintiff’s cause of action sounding in fraud was not pleaded with sufficient particularity to satisfy CPLR 3016(b). A cause of action sounding in fraud requires that there be a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation and damages (see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009]; Cruciata v. O’Donnell & McLaughlin, Esqs., 149 A.D.3d 1034, 1035, 53 N.Y.S.3d 328 [2017] ).

In his complaint, plaintiff broadly alleges that defendants “knowingly misrepresented the required insurance carrier for the [tractor trailer],” “engaged in a practice of obscuring and delaying any claims without any serious effort to reach an equitable settlement” and are “pursuing [a] strategy of confusion and misrepresentations for profit.” He bases these allegations on the fact that the insurance card provided by Haas at the time of the accident failed to specify the tractor trailer’s insurer and that his subsequent efforts to contact said insurer were excessively circuitous. Accepting plaintiff’s allegations as true and according him every favorable inference, as we must (see Harris v. Reagan, 161 A.D.3d 1346, 1348, ––– N.Y.S.3d –––– [2018]; Brown v. Government Empls. Ins. Co., 156 A.D.3d 1087, 1088, 66 N.Y.S.3d 733 [2017] ), we find that the amended complaint is devoid of any factual support for plaintiff’s broad assertions. The fact that there was some confusion regarding the insurer of the tractor trailer is, without more, insufficient to demonstrate defendants’ knowledge of the alleged misrepresentation’s falsity and an intent to induce plaintiff’s reliance thereon (see Carlson v. American Intl. Group, Inc., 30 N.Y.3d 288 310, 67 N.Y.S.3d 100, 89 N.E.3d 490 [2017]; Thomas v. New York City Dept. of Educ., 151 A.D.3d 412, 413, 52 N.Y.S.3d 855 [2017]; Jonas v. National Life Ins. Co., 147 A.D.3d 610, 612, 48 N.Y.S.3d 77 [2017]; see generally Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d at 559–560, 883 N.Y.S.2d 147, 910 N.E.2d 976). Accordingly, as plaintiff’s pleading failed to satisfy the requirements of CPLR 3016(b), Supreme Court properly dismissed plaintiff’s second cause of action.

As a final matter, neither plaintiff’s proposed amendments to his amended complaint nor the requested discovery would confer standing to sue XL Insurance upon him or cure the pleading deficiencies. Thus, although Supreme Court incorrectly stated that he failed to submit a properly notarized affidavit and proposed amended complaint with his cross motion, we need not decide whether the court should have granted plaintiff leave to serve a second amended complaint. Accordingly, Supreme Court properly dismissed the amended complaint against defendants.

*3 Plaintiff’s remaining contentions, to the extent not expressly addressed herein, have been considered and are either academic in light of our decision or without merit.

ORDERED that the order entered December 23, 2016 is affirmed, without costs.

ORDERED that the appeal from the order entered August 7, 2017 is dismissed, without costs.

Garry, P.J., McCarthy, Rumsey and Pritzker, JJ., concur.
All Citations
— N.Y.S.3d —-, 2018 WL 3383595, 2018 N.Y. Slip Op. 05244

Footnotes

1
The record reflects that plaintiff brought two separate cross motions, which, in relevant part, sought leave to make different amendments to the amended complaint. Although it appears that Supreme Court did not address plaintiff’s second cross motion in its December 2016 order, any error resulting from the apparent oversight is academic in light of our holding herein.