Opinion
Civil Action No. 02-2702 SECTION "C" (4)
October 15, 2002
MINUTE ENTRY
This matter comes before the Court on (1) the plaintiffs' motion to remand and (2) motion for summary judgment filed by Freightliner Corporation ("Freightliner"). Having considered the record, the memoranda of counsel and the law, the Court has determined that remand is inappropriate and dismissal of Freightliner is appropriate for the following reasons.
The Louisiana plaintiffs are the heirs of Kevin Morgan ("Morgan"), who died in an accident involving Freightliner tractor he was driving for Dupre Transport, Inc. ("Dupre") on October 11, 1999. Shortly thereafter, the plaintiffs filed suit in the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana, on or about October 12, 1999. Freightliner was served on April 24, 2000, and a corporate deposition of Dupre was conducted on May 23, 2002. This case was removed to the Middle District of Louisiana on June 21, 2002. After Freightliner's motion for summary judgment had been filed, the plaintiffs filed their motion to remand on July 23, 2002. This matter was transferred to this Court under 28 U.S.C. § 1406 on August 29, 2002.
This 1999 date is taken from the petition. However, the police reports of the accident bear a date of October 11, 1998.
Plaintiffs' motion to remand
The motion to remand is not opposed on the basis of its timeliness, nor does it raise the issue of the timeliness of the removal. Instead, removal is challenged based on the lack of subject matter jurisdiction and, more specifically, the lack of complete diversity due to the inclusion of Dupre, a Louisiana corporation, and its insurer as defendants. The plaintiffs claim that the inclusion of these non-diverse defendants is not fraudulent, as claimed by the removing defendants, based on its claim that Dupre and its officers "failed to properly train and educate its employees in the appropriate manner of safely transporting dangerous substances as well as failing to properly secure the liquid bulk material being hauled by Mr. Morgan." (M.D.La. Rec. Doc. 8).
The Court notes that any procedural defect in the removal procedure is waived if not timely raised. Barnes v. Westinghouse Electric Corp., 962 F.2d 513 (5th Cir.), cert. denied, 506 U.S. 999 (1992); Charles Wright Arthur Miller, 14B Federal Practice Procedure § 3721 (West 2002).
"The burden of persuasion placed upon those who cry 'fraudulent joinder' is indeed a heavy one." B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The removing party must establish the existence of federal jurisdiction. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992). The removing party must demonstrate that there is no possibility that the plaintiffs would be able to establish a cause of action against the non-diverse defendants in state court. Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir. 1994).
A claim of fraudulent joinder is akin to a motion for summary judgment. Badon v. RJR Nabisco, Inc., 224 F.3d 382, 393 (5th Cir.), op. after certified question declined, 236 F.2d 282 (5th Cir. 2000). Disputed questions of fact are resolved in favor of the nonremoving party; if no proof of contradictory facts is submitted, the court does not assume that the nonmoving party could or would prove the necessary facts. Id. All disputed questions of fact and all ambiguities in controlling state law are resolved in favor of the nonremoving plaintiffs. Ford, supra. The Court should not pre-try the case, but can pierce the pleadings and consider summary judgment-type evidence to determine fraudulent joinder.Carriere v. Sears. Roebuck Co., 893 F.2d 98 (5th Cir. 1990), cert denied, 498 U.S. 817 (1990)
The court determines whether there is any possibility of recovery against the non-diverse party. Id. If the court determines that recovery is possible, "then a good faith assertion of such an expectancy in state court is not a sham . . . and is not fraudulent in fact or in law."Dodson, 951 F.2d at 43. "There can be no fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the cause alleged." Parks v. New York Times Co., 308 F.2d 474, 478 (5th Cir. 1962), cert. denied, 376 U.S. 949 (1964)
The "intentional act" which can be claimed against an employer under Louisiana law requires "that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result." Reeves v. Structural Preservation Systems, 731 So.2d 208, 211 (La. 1999), quoting Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981). Musacchia v. Sanderson Farms, Inc., 2001 WL 277934 at *2 (E.D.La.) (J. Barbier). There is no proof presented that any person consciously desired the consequences here. "Substantial certainty" requires that the injury resulting must be inevitable or incapable of failure. Reeves, 731 So.2d at 212-213. Wanton, reckless, careless or even grossly negligent acts do not suffice to state a claim of intentional act against an employer. Id.
The Court finds that the plaintiffs' claimed failure to train, educate and secure do not suffice under this stringent exception to employer immunity in Louisiana. Therefore, the Court finds that Dupre and. its insurer have been fraudulently joined for purposes of removal and remand is not appropriate.
Freightliner's motion for summary judgment
Freightliner argues that it is entitled to summary judgment because the plaintiffs can not meet. their burden of proof under the Louisiana Products Liability Act, La.Rev.Stat. 9:2800.51. ("LPLA") Specifically, Freightliner argues that the plaintiffs are unable to meet their burden under the LPLA because: (1) the evidence does not identify a defect existing when the tractor left Freightliner's control; (2) the plaintiffs admit to no evidence of a defect and (3) plaintiffs have no evidence from which expert testimony can derive evidence of a defect. The plaintiffs argue that the existence of two other fatal accidents involving Dupre employees driving Freightliner tractors provide for a genuine issue of material fact. when the doctrine of res ipsa loquitur is applied, and that ruling on the motion should be delayed in light of the stay imposed by the liquidation of Dupre's insurer in Pennsylvania.
In order to recover under the LPLA, the plaintiffs must prove (1) damage, that (2) was proximately caused by (3) a characteristic of an unreasonably dangerous product during (4) a reasonably anticipated use of that product. Pickett v. RTS Helicopters, 128 F.3d 925, 928 (5th Cir. 1997). A product is unreasonably dangerous if it either (1) is defective in construction; (2) defective in design; (3) have an inadequate warning; or (3) fails to conform to an express warranty. Id. The LPLA provides "the exclusive theories of liability for manufacturers for damage caused by their products." La.Rev.Stat. § 9:2800.52.
Here, the plaintiffs do not contest the fact that they can not identify the alleged defect, but claim application of res ipsa loquitur. Louisiana law provides res ipsa loquitur with an evidentiary purpose:
All that is meant by res ipsa loquitur is "that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant's duty."Larkin v. State Farm Mutual Automobile Insurance Co., 97 So.2d 389, 391 (La. 1957) (citation omitted). It applies when: (1) the circumstances surrounding the accident create a presumption of negligence on the part of the defendant; (2) control and management of the instrumentality causing the accident must have been vested exclusively in the defendant; and (3) the plaintiff's position must be such that he is unable to obtain information regarding the cause of the accident. Smith v. Xerox Corp., 866 F.2d 135, 140 (5th Cir. 1989). The theory has been applied in a products liability context when the court is presented with circumstantial evidence that excludes other reasonable hypotheses with a fair amount of certainty. Williams v. Emerson Electric Co., 909 F. Supp. 395, 398 (E.D.La. 1994); State Farm Mutual Automobile Insurance Co. v. Wrap-On Co., Inc., 626 So.2d 874, 877 (La.App. 3rd Cir.), writ denied, 630 So.2d 800 (La. 1994). A manufacturing defect may be established by circumstantial evidence under the evidentiary doctrine of res ipsa loquitur under circumstances in which "the only reasonable and fair conclusion is that the accident resulted from a breach of duty or omission on the part of the defendant." Jurls v. Ford Motor Co., 752 So.2d 260, 265 (La.App. 2d Cir. 2000). It is a rule of circumstantial evidence that should be sparingly applied. Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La. 1992)
The plaintiff bears the initial burden of showing the appropriateness of the theory's application by excluding all other reasonable hypotheses for the cause of the accident except defendant's negligence. Phillips v. General Motors Corp., 2000 WL 1285380 (E.D.La.) (J. Vance). Here, the plaintiffs rely on the circumstantial evidence that two other fatal accidents involving Freightliner tractors occurred at Dupre. The Court finds that this evidence does not support the unusual circumstances required for application of res ipsa loquitur. First, it is undisputed that the vehicle involved in Morgan's accident was four or five years old and had driven over 600,000 miles. Compare Williams, supra Wrap-On, supra. In addition, and as reflected in the plaintiffs' claims themselves, there exists the real possibility of other causes here, including driver error, loading error, or defects in the trailer or roadway. The plaintiffs are left with only speculation that there was something defective about the Freightliner tractor.
Accordingly,
IT IS ORDERED that the plaintiffs' motion to remand is DENIED and the motion for summary judgment filed by Freightliner Corporation is GRANTED.