Lotte Insurance Co. Ltd., v. R.E. Smith Enterprises, Inc., No. 4:2023cv00153 - Document 32 (E.D. Va. 2024)
Court Description: OPINION AND ORDER: The Court GRANTS Smith's 19 Motion to Dismiss Counts III and VI of Plaintiff's Complaint. Accordingly, the Court DISMISSES with prejudice Counts III and VI. The Court Grants G Street's 21 Motion to Dismiss Counts V and VII of Plaintiff's Complaint. The Court DISMISSES with prejudice Count V and DISMISSES without prejudice Count VII. Signed by Chief District Judge Mark S. Davis on 5/7/24. (mrees)
Download PDF
<![CDATA[
Lotte Insurance Co. Ltd., v. R.E. Smith Enterprises, Inc. UNITED STATES Doc. 32 DISTRICT EASTERN DISTRICT OF COURT VIRGINIA Newport News Division LOTTE INSURANCE Subrogee of GLOBAL its LTD CO. insured, LOGISTICS CO t as i LOTTE LTD i Plaintiff, Civil V. R.E. SMITH d/b/a ENTERPRISES, INC No. 4:23cvl53 / SPECIALIZED SMITH LOGISTICS, Texas a corporation. & TRUCKING Virginia liability company. limited DNK WAREHOUSING LLC, a TRINITY LOGISTICS Virginia limited LLC, a liability company. and G STREET & ASSOCIATES, a Virginia limited LLC, liability company. Defendants. OPINION AND This matter is before the ORDER Court on two filed by Defendants R.E. Smith Enterprises, No. Associates ("G the and 19, and respectively. G Street & Because adequately presented in facts the motions motions Inc. dismiss ("Smith"), Street"), legal to ECF ECF No. 21, questions are and subsequent briefs, and Dockets.Justia.com oral argument would not aid in the decisional process, For the finds that a hearing is unnecessary.^ herein, the and GRANTS Court GRANTS G Street's I. As motion FACTUAL alleged in Complaint 2021, SDI 300 packages of Batteries") vessel Ltd. ECF 1-1, Shipping buyer attached at container terminal in Portsmouth, Plaintiff alleges Canadian buyer. between Lotte Id. and 4. Travelling overseas the Batteries were Canada, but International of 2021, According around to a Batteries series December 3, of No. 1, Lotte emails at a 4. Global Smith, overland 2021, on ("VIG"), contracted with Defendant the the arrived Gateway ECF on ultimately first Virginia. December deliver Smith of of Virginia to container country at business. a of Samsung's 2021, logistics shipped October Korea, Alberta, ("Lotte") in Ltd.'s (the 21, Ltd. exhibits, Co. batteries November Co., . lithium-ion a Logistics 19) cell for in 21) (ECF No. Insurance ("Samsung") destined that dismiss BACKGROUND Lotte Lotus," in reasons explained (ECF No. PROCEDURAL capacity No. to dismiss South from "Cosco and Co., large incorporation.^ AND to motion Plaintiff ("Plaintiff") Samsung Smith's the Court to a the exchanged Smith was to ECF No. 30, Request for Hearing, - The Court received the parties' joint but determined that the issues were adequately presented in the briefs before 2 the Lotte Court. Insurance Logistics Co., ECF No. 1, at Ltd. Co. Ltd., ("Lotte"), as subrogee of its insured, Lotte has brought the instant suit as 1. 2 Global Plaintiff. receive the Batteries their ocean-going their from VIG, container, and regulations Id. Because for the shipping ultimate occur from a bonded located in Hampton, ("DNK") on Virginia, transloading, Accordingly, the storage, in Trinity and DNK another Id. leased and batteries.^ Batteries // needed ("Warehouse") , for of that, Warehouse at from safe the the handling, Batteries. n that Transp., Fed. of another and were accepted as all its \\ relevant times. owner. Street, G tf Id. at 'a Highway Admin., terminal It one U.S. Dep't of point. Prog., Freight Glossary, interchange Freight Prof'l Dev. http://ops.fhwa.dot.gov/freight/FPD/glossary/index.htm 17, Id. the Batteries entered "Transloading" is a term of art in the bulk transportation industry, means [t]ransferring bulk shipments from the vehicle/container of to to selected 2 mode was and DNK Warehousing & Trucking Lotte alleges named Defendant. safety rules therefore Warehouse to subcontracted with Defendants redelivery the the Smith good order and condition, Plaintiff Id. n of and for from Batteries lithium-ion between December 8th and 11th, Warehouse such. n 4 ("Trinity") behalf the the foregoing procedures Logistics/DNK Trinity Logistics LLC LLC flammable warehouse. Trinity nearby Batteries applicable destination outside of the United States, the then transport Canadian buyer consistent with the and the transload (last visited April 2024). ^ According to U.S. Customs and Border Protection, a "bonded warehouse" is "a building or other secured area in which imported dutiable merchandise may be stored, manipulated, or undergo manufacturing operations without payment of duty for up to 5 years from the date of Customs and Border Protection, Bonded Warehouse, sites/default/files/documents/bonded_20wh2_2.pdf. 3 importation. U.S. https://www.cbp .gov/ While temporarily allegedly under DNK's were control, and it were However, 5. the while custody and control. discharged that was the for collapse from a eventually of in some of the walls evincing growth the result, South Korea Samsung's damage to of technical the the consignment ^ addition In exposed to regulations batteries. to \\ business ECF No. mold were cells, 1, at to Canada. Id. alleges that exclusive Plaintiff compromised that the authorities, due alleges building delaying underwent a inspection revealed crushed, from their water returned the to rendering and their for dangerous if levels the 5. 4 by the the care packaging Id. As in Id. Batteries used. were inconsistent custody a irreversible Batteries and now Samsung. found all that manufacturer of damage, preliminary damage. allegedly humidity custom different Trinity's inspection and testing and a outer wall and the water visual been above-described temperature and that unmerchantable the to and and wetness damage" Batteries inspection battery custody Plaintiff Indeed, local Batteries Id. the black further exclusive and Id. so by had Batteries for 2021, "physical were alleges Batteries \\ the transferred DNK's pipe.^ 2022, Plaintiff 12, >\ A inspection of the Batteries. survey. be the Warehouse's condemned 18, Warehouse, ground transportation suffered burst Warehouse On April to still // the and Trinity's around December Batteries, to both the in scheduled container appropriate at stored of tr in Id. allegedly with safety lithium-ion Samsung loss, therefore and u commercial was the determined Batteries value of approximately inspection, and the that were the destroyed. Batteries, $493,800, disposal by and was a 2023, Smith, of Plaintiff expenses, 11, result ECF DNK, an Answer No. to 1, cost approximately 19. the two (Negligence). Count I (Breach the III Clerk Trinity. of ECF No. Court No. at 6. The calculation. transportation, $49,380, producing a Id. seven and 2024, the associated 25. against Defendants Two months later, Smith filed Contract) , ECF No. an and VI 20, and (Negligence) , a ECF G Street filed a Motion to Dismiss it, The next 21. filed of counts (Bailment) asserted against ECF of sustained and G Street. On February 20, claims damage asserting Motion to Dismiss Counts No. Id. total a filed its Complaint in this Court on December Trinity, as the was Plaintiff's the total loss of approximately $543,180. As shipment "Entry Counts V (Bailment) week, February 26, of on Default" against and VII 2024, DNK and Smith and G Street's respective motions to dismiss are now fully briefed and ripe for review. II. Federal dismissal of state a to Civ. \\ P. Rule of a cause Civil of claim upon 12 (b) (6) . STANDARD OF Procedure REVIEW 12(b)(6) action based on which relief can the be provides plaintiff's granted. // for the failure Fed. R. A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Federal Rule of Civil Procedure 5 8(a)(2), which requires only "a short and plain statement of claim showing Civ. P. the . Atl. V. that 8(a)(2), . . V. Gibson, setting so claim Corp. the as to \\ is entitled the grounds Twombly, 550 U.S. U.S. 41, 47 forth enough facts speculative level relief, upon which 544, 555 (1957)). it Fed. // rests. (2007) R. Bell n (quoting Fair notice Conley is provided by raise a right to relief above to on the assumption that the complaint are true to give the defendant fair notice of what and 355 is pleader the all the the allegations (even if doubtful in fact) . Id. n at in 555, 570 . To survive complaint must true, 'state face. to / // Twombly, contain a recitals to claim to Iqbal, 550 at 570) . U.S. dismiss sufficient V. relief 556 550 of // U.S. the that at H statements. harmed-me accusation[s] Because Id. a complaint without 678 unadorned, suffice (2009) as on its (quoting standard neither action, is not meet 550 U.S. tests dismiss factual Id. \\ (quoting [t]hreadbare supported by mere the-defendant-unlawfully- to 6 "a accepted plausible liable. Moreover, nor resolving 662, is a cause of to 12(b)(6), but it asks for more than a defendant (citing Twombly, motion is plausibility of n Rule matter, that U.S. The 556). elements conclusory requirement. a under factual 'probability requirement,' possibility Twombly, motion Ashcroft akin to a sheer a the plausibility at 555) . the disputes, sufficiency of a a district court must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable tt Kensington Montgomery Cnty., 684 F.3d 462, the du plaintiff. Pont (4th de Nemours Cir. & Co. v. 467 the Fire {4th Cir. Indus., truth Inc., of from the facts" and unreasonable Mkts., V. Inc. J.D. "need not Assocs. Ltd. or P'ship, of Inc, v. (quoting E.I. F.3d 435, facts 440 alleged is "legal conclusions as unwarranted true arguments. 213 favor Dep't, 637 the accept conclusions, in 2012) district courts are not bound by the inferences, Cir. Volunteer Kolon Although 2011)). presumed, drawn t inferences F.3d E. it Shore 180 175, (4th 2000). III. Defendants respect asserted to Smith each facts The granted. G Street Plaintiff's bailment against sufficient and DISCUSSION and then will to Court them, state a Plaintiff claim first bailment of failed which Smith's that, causes has upon address with action to relief motion to plead can be dismiss turn to G Street's motion. A. Smith's Motion to Smith contend and negligence of will both argues claim, that and this Count VI, Court a Dismiss should dismiss negligence claim, Count III, because a each count asserts a claim under state common-law that is preempted by 7 federal state law.® view, Plaintiff's when asserted against Smith in its capacity as ECF law claims, No. 23, at In 2-4. Smith's an interstate motor carrier and/or property broker, by either the Interstate {"ICCTA"), 49 Interstate Commerce Plaintiff opposes arguing that are U.S.C. its asserted § Commerce 14501, Act of or 1887, Commission the 49 Carmack U.S.C. Smith's motion on various against The Court 2. VI, negligence, Smith in its first addresses way derives of Constitution, law of the status \\ of state Wash. 412, Inc. , law legal Gas 419 505 the Supremacy land. federal at 8. principally legal that law. the doctrine Co. (4th Cir. U.S. 504, v. Prince 2013) 516 a broker, ECF sufficiency No. of a 26, Count bailment. doctrine Clause Const. with as preemption. the U.S. conflicts Light the - Negligence background, which establishes that Act to Id. 14706. grounds, and then turns to Count III, from Amendment capacity the 1. Count VI By Termination state law claims are not preempted because they classification that purportedly avoids at § are preempted Art. federal of federal law law is States the is 'without Cty. Council, Cipollone As United supreme preemption provides George's (1992) ) . preemption Pursuant to the superior VI. (quoting the of of is v. relevant that effect. 711 / // F.3d Liggett Group, here, express More specifically, Count VI sets forth a negligent hiring claim, alleging Smith owed a duty of reasonable care in the transportation of the that Batteries that was breached when Smith negligently hired DNK and Trinity. No. 9. 1, at 8 ECF preemption occurs preemption declaring § clause its 10101 et the in a United States federal did just state in 1995, the includes thereby law ICCTA a expressly to be preempted. that when it passed the Enacted seq. Congress statute, intention for pertinent Congress Id. when ICCTA, 49 includes U.S.C. a broad preemption clause that reads: [A] State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or any motor or service of any motor carrier private carrier, broker, or freight forwarder with respect to the transportation of property. 49 U.S.C. against amounts of law Northwest, to and n Inc, v. an >\ thus other is Ginsberg, the clause) ; 2014 see U.S. common force and U.S.C. state also Dist. state the state common-law claim is related to price, provision preempted 572 U.S. Airline Deregulation Act preemption provision nearly 49 a having route, force and Id. ; see by the ICCTA. 273, 281 (2014) law AIG LEXIS (concluding effect § Ltd, 99152, at amounts of 14501(c)(1))). law' v. to (D. an under However, common-law claim and the 9 to the General *10 language pre-emption provision, identical Eur. claim (ADA) Md. or the state common-law rules fall comfortably within the that of Importantly, 14501 (c) (1) . a carrier or broker that service effect § // a ICCTA's preemption Sys. , July No. 22, 13cv0216, 2014) ("[A] 'other provision having the the if the entity's [ICCTA] . // connection prices, (quoting between routes, and services claim U.S. >\ is tenuous, is not preempted. 374, 390 (1992). In addition federal to Initially national ICCTA's regime entities Interstate scheme in of also Link Cargo 1906, Under the loss Van of U.S.C. § 231 14706(a)(1) the 986 Ltd., F.3d F.2d 700, 704 138 (4th Cir. § lading. (4th u Ward 2000) "a or lost // Shao Cir. 'for to 14706. creates damaged liable it transports. 135, the interstate U.S.C. goods a carrier is 504 clause, Amendment for law Carmack Amendment 49 Carmack state Airlines, against under a valid bill of or injury to the property' Inc., claims liability Carmack Amendment, Lines, World the preemption 1887, the carrier (Taiwan) express then u Trans includes Act during interstate shipment V. v. covering Commerce enacted or peripheral, Morales the preemption transportation the remote, 1993) . the actual V. Allied (quoting 49 (1997)). To implement its framework for carrier liability across the state law claims for damages to goods caused by an interstate carrier. 5K country, the Logistics, Carmack Inc, v. 2011); Nachman v. Dist. LEXIS Amendment Daily Exp., at *5 distinction between a motor for preemption; while a district the 659 Inc., Seaford Transfer. 149315, significant completely No. Va. Aug. "carrier" Carmack F.3d Inc., (E.D. court preempts and a 10 335 4:18cv62, 31, "broker" addressing Amendment 331, (4th Cir. 2018 2018) is Carmack . U.S. The therefore Amendment clearly preempts state common-law statute claims against less is settled with AIG Eur. against brokers. *14; compare Atlas JWL-12-1200, carriers. 2013 WL respect Ltd., Aerospace the to state 2014 U.S. LLC v. 1767943, preemptive at force law Dist. claims LEXIS Advanced Transp., *2-3 (D. Kan. of the made 99152, Inc., 24, Apr. at No. 2013) (finding that a breach of contract claim against a broker is not preempted by the Carmack Amendment), V. Midway (D.N.H. Line of 2012) Illinois, (holding Inc., that a with Ameriswiss Tech., 888 F. Supp. negligence 2d 197, claim of broker preemption is unresolved in the in 5K Logistics, the Fourth Circuit did offer suggesting that a breach of contract action the Carmack Amendment not a carrier. inasmuch as 5K Logistics, u [the Inc., to suggest Amendment AIG Eur. does Ltd., Invoking argues state Carmack that not the Fourth preempt all 2014 U.S. the Dist. preceding Plaintiff's common-law Amendment determined in that. While to be claims, regardless a LEXIS carrier for or at is a 338. whether broker. by broker, At least statement the against Carmack brokers. n *15. preemption bailment 11 not preempted by view. claims preempted of is interpreted this 99152, federal claims are state the instructive dicta F.3d at Circuit's the Fourth Circuit, plaintiff] 659 one district court in this Circuit has \\ 203-04 against defendant-broker was preempted by Carmack Amendment). issue LLC and the Smith ECF Smith regime. negligence, ICCTA is No. or as the ultimately 23, at 8. Plaintiff Answer first to responds Plaintiff's by pointing breach of out contract that claim in Smith, I), (Count its denies entering into a contract with Lotte, which Plaintiff leverages to argue that, a carrier nor a broker, view. Smith but simply a third party. ECF No. law. its may, 26, should claims state law not be be claims its state law claims dismiss because the Court, determine parties, to Plaintiff or whether which requires discovery. arrange ECF asserts for determined to be at not time a because broker, preempted if and they are 8. No. that Plaintiff's preliminary contention should contract Smith's motion existed between to must the two Plaintiff's state law claims to proceed 26, Expanding [i]f at of this ICCTA apply" demonstrate or contract Cargo, to then argument. transport neither the because Smith would be a And to broker this fails to cite any authority for this proposition. fails a on But u than 6. Smith did not transportation rather survive Id. third party Plaintiff this before ruling on Smith's motion, a Carmack Amendment nor the Plaintiff at Relevance of Contract Dispute The Court first addresses first Plaintiff's Plaintiff maintains dismissed are Id. directed against a broker. a. Furthermore, at 6. post-discovery, Plaintiff's that In state law claims against third parties are not preempted by federal that Smith is neither without a contractual relationship. how 12 motor the carrier. claimed absence of a contract to is relevant dismiss, state which common-law the claims negligence and preemption without e.g., *9; Siaci Saint 2022 U.S. In Dist. courts have Honore due Ltd., v. WV to extent 2014 *32 that Court parties, determines that therefore dispute unsupported proceeds over whether Count to VI: there was argument address the whether U.S. law. is and/or Carmack contract Dist. is LEXIS No. 14, was 99152, 21cv03909, 2022). arguing that the should be postponed until a contract between rejected.® gravamen this dismiss a Nov. Id. to Kowloon, Plaintiff resolution of Smith's motion to dismiss the federal ICCTA (D.N.J. motion non-contract-based whether Maersk at by Smith's granted motions addressing AIG Eur. the Plaintiff's claims first resolution of preempted LEXIS 207436, to sum. that are bailment See, formed. Court's contends myriad district Indeed, at to of The the state-law Court parties' claim tort preempted by the ICCTA and/or the Carmack Amendment. the To is resolve Smith's motion to dismiss challenges Plaintiff's Count III (Bailment) and Count VI (Negligence), two state common-law claims. Moreover, Plaintiff's negligence claim indisputably sounds in tort law, which by definition establishes claims of civil wrong or injury . . . not involving a breach of contract. Atl. Specialty Ins. Co. v. Bindea, 656 F. Supp. 3d 624, 639 (W.D. Va. 2023) (emphasis added); see Tingler v. Graystone Homes, Inc., 298 Va. 63, 80, 834 S.E.2d 244, 253 (2019). ® Plaintiff has alleged in its Complaint that "Smith contracted with Lotte and fails to explain why to deliver the Batteries to a buyer in Edmonton, liability in its Answer to Smith's general denials of contractual Plaintiff's Count I - a Count alleging breach of contract that is not the subject of resolution Defendant's of motion to Defendant's motion dismiss to dismiss 20. 13 are relevant Counts III to the and VI. Court's ECF No. this the issue, broker or b. must briefly address Smith's status as a carrier. Smith's Status Plaintiff Smith is Court as Broker or Carrier and Carmack Preemption acknowledges liable as a Freight Broker that its a Motor Carrier ('Broker'). // 9 complaint \\ discovery stage in the proceedings, No. 26, that or alternatively. {'Carrier'), ECF alleges at At this 2. pre- it would be premature for the Court to conclusively resolve Smith's classification because the carrier/broker inquiry is inherently fact-intensive and not well suited to summary Nipponkoa Ins. 2365, 2011 Co. U.S. v. Dist. The Court 2011). judgment. thus C.H. tt let alone to a motion Robinson Worldwide, LEXIS 17752, declines to at to No. Inc., *14 dismiss. (S.D.N.Y. rule on Smith's 09 Civ. Feb. 18, classification at this juncture. While Smith the Court will at Batteries, the Carmack Amendment Conversely, its if Smith is found this stage federal preemption. to be a carrier and must be dismissed. ECF if Smith is found to be a broker, Answer, Smith characterizes itself as No. 26, the parties a 20, at of at 2. appear broker engaged in arranging for the transportation of cargo in interstate commerce ECF No. whether then Plaintiff's state law claims are preempted by the In determine is a carrier or broker for purposes of the parties do agree that 5 not . . 1. Should Smith be found to be a carrier. Plaintiff's sole cause of action against Smith for the alleged loss would be through the Carmack Amendment, ECF No. 1, at 6. which Plaintiff has pleaded in Count I of its Complaint. 14 to disagree as to whether Plaintiff's state common-law claims are preempted by the Carmack Amendment and thus must dismissed. be Id. As previously noted, disagreed as law claims in against 5K in other circuits have Carmack Amendment preempts all state to whether the made indication district courts Given brokers. Logistics that the the Carmack Fourth Circuit's Amendment preempt all state law claims against brokers, does not and in view of the presumption that Congress does not intend to supplant state law . and . unless manifest deciding & 654-655 Aero, the as Blue U.S. the a see Congress, Plans III) New v. LEXIS Amendment a avenue of the assumes preempt clear without Count VI York State Ins. Conference Co., 514 not *7-8 courts {"[T]he U.S. 645, Court . . have held that that preempt Blue see also Atlas 659 F.3d at 338; at of claims against If Plaintiff's negligence claim were solely directed claim therefore not [is] when directed against Smith in 58378, does that Court does Travelers 5K Logistics, against Smith as a carrier, such the It Amendment broker. Dist. indicates] ) overwhelming majority of [Carmack] brokers."). of Carmack Shield (1995); 2013 follows the statute it preempt Count capacity Cross federal purpose that (nor does its ([a the consistent Court would ICCTA preemption the Carmack Amendment would preempt with not well-established need discussed 15 to reach below. case the See law, and alternative Nachman, 2018 U.S. the Dist. LEXIS 149315, Carmack Amendment damages to goods *5-6 ("It completely caused being Accordingly, at unable is preempts by to well-established state claims law interstate an resolve that carrier. Plaintiff whether for // IS properly classified as a broker or carrier at this stage of the proceedings, the dispositive issue at the motion to dismiss stage is whether Plaintiff's negligence claim is preempted by the ICCTA when directed against for a Smith broker-directed negligence may evade preemption in its claim is light in capacity as the of only the a broker, type claim that of Carmack Amendment's preemptive force. c. In ICCTA Preemption of Negligence Claims Against Brokers its negligence motion to dismiss, even claim when Smith argues directed that against Plaintiff's Smith in its capacity as a broker — is preempted by the ICCTA and thus must be dismissed. ECF No. 23, at Countering 7. this argument. Plaintiff contends that the ICCTA's preemption provision does not apply because the instant negligence claim does not have anything more w than price, covered \\ tenuous, route, or by 49 U.S.C. Inc., No. Worldwide, at *22 a (W.D. va. remote, service § // of or peripheral a broker, 14501(c)(1). 7:16-CV-00102, July 27, 2017). 16 // connection to the therefore is not and Mann 2017 U.S. v. C. Dist. H. Robinson LEXIS 117503, When addressing issues of begins \\ with the text necessarily contains intent. CSX tt enforcement the best Transp., and of a effect . law, of Inc, provision evidence v. of at issue, 507 . . U.S.C. § 14501(c)(1). U.S. 658, a preemption purpose. n \\ related to a . . . service of any In the 504 as U.S. vested at language with a As 383. a the service of a broker, "connection with, or Assn., \\ reference is only indirect. 552 U.S. In 364, addition interpreting Circuit's 370-71 to the interpretation, 49 to Rowe V. the tf a w \\ broad related for F.4th 453, 460 (7th Cir. a // state related services, on has 14 501(c) (1) V. principles relevant and GlobalTranz finds a and broker's 2023). 17 In Ye, of statutory authorities the Seventh Enterprises, particularly instructive for resolution of the 74 to (2008). surveyed Ye the New Hampshire Motor Transp. Court in effect claim's these § 49 pre-emptive result, broker's consulting U.S.C. opinion It // . the claim in question need only have may still be preempted even if the service . federal preemption, Court interprets the provision Morales, context of law-based claim to be barred as preempted because it is tf 664 or other provision having the with respect to the transportation of property. United States Supreme to which pre-emptive Congress' Easterwood, regulation, law broker in the the Court The ICCTA's express preemption provision prohibits state (1993) . force of statutory construction, the Inc. instant dispute. Seventh Circuit concluded that a personal-injury-based negligent against a broker was preempted by 49 U.S.C. the would claim services, Id. t! have at a 459. hiring claims strike w significant In the hiring § 14 501(c) (1) economic effect at the core of [the] broker['s] because on Seventh Circuit's view, claim broker negligent services by challenging the adequacy of care the company took — or failed to take hiring in broker's would hiring occasion [the carrier]. decisions this to a Because Id. // common-law significant economic subjecting negligence the effect, a standard Ye court concluded that negligent hiring claims — including those based on personal injuries caused by a carrier — are expressly preempted by the text of 49 U.S.C. § 14501(c)(1). With that background in mind, which position. Freight 29439, while Trucking, at the district preempt courts *20 \\ Fourth courts this n No. has have makes such Fourth 2024 460. 2024) , not opined that claims broad on LEXIS to that issue does brokers. citing have Move observes § 14501(c) (1) by v. Dist. this reference that Milne U.S. against statement Circuit in Milne 20, found negligence supports outlined 7:23cv432, Feb. at the Court turns to Plaintiff's reasoning Circuit statement the on Va. therein law Milne across LLC, (W.D. state Though claims, relies Id. W // not Id. negligence to district concluded that negligence claims against brokers based on personal injuries are outside the scope of the preemption provision or shielded by the 18 safety exclusion. Strong Trucking, {emphasis Id. «11 624 Inc., F. Supp. added) ; 3d 567, see Ortiz 583-84 (D. an attempt to regulate the services of a freight broker Accordingly, is not preempted). in the hiring claims, accident, broker. Fourth contrary to Ye, Circuit have have anything more connection and thus n found to the do not than price, 117503, at attempt Under *7. negligent hiring claims members of the negligence 2022) and // thus several district that to this a \\ such tenuous, route, regulate in a manner that would trigger preemption. LEXIS Md. negligent when brought to impose liability for an automobile do not peripheral Ben a personal injury suit for negligent hiring is not {finding that courts v. view, or to recover service a broker's Mann, 2017 of or a service U.S. Dist. personal-injury-based are better understood as driving public remote, \\ an attempt by for a broker's in selecting an unsafe motor carrier, H id. at alleged 23, and vindication of the public's interest in safe driving through such negligence claims does not Congress' \\ deregulatory and have a significant pre-emption-related thus is not preempted by the ICCTA. Irrespective Seventh Circuit Plaintiff's 11 of the in Ye instant the negligence objectives. n and Id. conflicting and impact related to conclusions preceding claim against reached by the district Smith is courts. wholly The safety exclusion is an independent exception applicable in certain circumstances when preemption would otherwise apply, applicability to the instant case is addressed below. 19 and its potential unrelated to personal from the holdings. reasoning injury and thus cannot appreciably benefit in the Rather, 12 Mann-Milne Plaintiff's Count pecuniary losses associated with the Batteries while from the hiring stored automobile claims that 117503, at *7; Milne, result, Plaintiff's 2024 U.S. negligent VI a district seeks to circumstance gave rise Mann, in Mann and Milne. of court recover alleged damage done to the in a warehouse, accidents line to 2017 far negligent the U.S. removed Dist. LEXIS Dist. LEXIS 29439, at hiring claim cannot reasonably be construed as enforcing safe driving practices *20. As a like the personal- injury-based negligent hiring claims found not to be preempted in Mann and Milne. Id. Untethered hiring claim to any comfortably breached entrusting at 74 the its duty ([the Batteries]) Warehouse. // ECF injury. falls within Plaintiff's preemption provision. Smith personal No. of the Plaintiff's terms negligence reasonable of Count care by negligent the ICCTA's charges that negligently ... to DNK and Trinity for storage 1, 9. at When analyzed through the Mann was decided before the Seventh Circuit published its opinion in Ye, F.4th at 460, which, as noted above, concluded that 49 U.S.C. does preempt personal-injury-based negligent hiring claims Accordingly, the district court in Mann did not have the against brokers, See Mann, 2017 benefit of considering the analysis articulated in Ye. § 14501(c)(1) U.S. Dist. LEXIS 117503, at *7. 13 Plaintiff's negligent hiring claim alleges that Smith "owed a duty of reasonable care in the transportation of the Batteries, which it breached by negligently hiring DNK to store the Batteries 9. 20 . ECF No. 1, at framework articulated clearly challenges Trinity to triggers ICCTA by services . 74 . store state at law the adequacy of and challenging claims that are service is Smith's U.S.C. § brokerage function by the respect a . to 14501(c)(1). service, impermissibly Freightquote.com, at care shipping to [the \\ of the *10 (D. hiring company took Ye, n service of any transportation a burdening Id.; Inc., No. Md. Apr. Ye, broker's 27, is Smith's that 74 \\ of core decision 2020 2020) to is defined that carrier as by a statute principal to u U.S. common Dist. {observing imposition of a see Vitek v. that LEXIS in \\ the liability risks the level of service a (cleaned up); broker must provide in selecting a motor carrier.") "broker" related carrier-selection F.4th at 459; JKB-20-274, . the . claim a pseudo-regulatory effect by reshap[ing] A broker's] ICCTA preempts . Because subjecting 14 negligent hiring context 14 thereby services. the . DNK and and tests reasoning, related negligent law negligence standard. 73544, this selection of claim the selection of a suitable motor carrier to transport Plaintiff's property. w with 49 // it to provide Unpacking hiring Batteries, adequacy [a carrier] 459. the because the negligent Smith's transport broker property. Plaintiff's preemption in hiring F.4th in as "a person, or agent other sells, than offers a motor for sale, solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor negotiates for, or holds itself 49 for compensation. brokerage (defining transportation."). carrier § 371.2 out by U.S.C. § service 21 13102(2); as see the also 49 C.F.R. arranging of see also 1027 Miller (9th against § Cir. a C.H. the because safety exception from Plaintiff 49 was § 1016, hiring 49 based statute's F.3d by preempted claim U.S.C. 976 negligent Plaintiff's on claim U.S.C. personal safety exception). negligence claim Despite 14501(c) (1) . is this the Court addresses below whether the ICCTA's § from preemption. 14501(c) (2) (A), spares Count ICCTA's Safety Exception from Preemption separately argues is preempted by the U.S.C. § that, terms of excluded from preemption by the 49 the Inc., dismissal. d. claim the facts. ICCTA. preemption finding, that saved by the these the Worldwide, expressly was but, on preempted by VI (holding claim was Therefore, Robinson 2020) broker 14501(c) (1) injury, v. 14501(c)(2)(A); w even if § 14501(c)(1), safety exception ECF its No. 26, at // negligence the in claim the ICCTA. This 8. is safety exception excludes certain state law-based claims from preemption by limiting the scope of the ICCTA's preemption provision, w shall with not restrict respect to the motor safety regulatory the vehicles. authority authority of of a a which State State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo // 49 After authorities, U.S.C. § 14501(c)(2)(A). reviewing the Court the parties' concludes 22 arguments that and Plaintiff's relevant negligence claim not is not fall excepted within the from preemption — exception's Plaintiff's terms preserving claim the \\ does safety regulatory authority of a State with respect to motor vehicles. 49 U.S.C. does not Ninth to Circuit § in § F.3d at 1030 based Miller requires to be the have Compare claim against of federal courts' [the 14501 (c) (2) 's from negligent hiring to F.4th laws to the on the is closely at 464 a direct have preemption does not exception.") § 14501(c)(2)(A) claims scope the link to provision in negligent within fall with of (Section [the plaintiff's] Defendant] safety (finding that as 74 Ye, saved rulings it Seventh Circuit in ^ and the disagreed state claim § 14501(c) (2) (A), under We thus conclude that 14501(c)(1). scope other exception. vehicles hiring protection To that end, 14501(c) (2) (A) motor for review issues. safety To understand why Plaintiff's 14501(c)(2)(A). qualify helpful related § II Miller, the 976 does save state law¬ premised on motor vehicle accidents). Notwithstanding safety from exclusion, preemption this disagreement as Plaintiff's by § negligence 14501 (c) (2) (A) to the claim under cannot either approaches taken by the foregoing appellate courts. and Miller, of breadth In be the saved of both the Ye the reviewing courts analyzed whether broker-directed negligent hiring claims that arose out of motor vehicle accidents were exempted from preemption by 23 § 14501 (c) (2) (A) . Ye, of course, found is that unavailing to the exception did not Though Miller preemption. found that arise out such of 'connection 49 with' § Importantly, arise claims motor U.S.C. that safety Circuit Seventh such claims opposite from conclusion, from preemption because ( [and]) as n is have the required by 916 F.3d Miller, it they requisite the text at of 1030. the Ninth Circuit determined that negligence claims of the motor with vehicle the safety \\ Miller, 976 Plaintiff's Ninth the exempt the accidents, vehicles text of property the \\ promote safety authority 49 U.S.C. // F.3d at Circuit's accidents regulatory respect to motor vehicles. added); saved 14501(c) (2) (A) . out preserves because reached were vehicle motor consistent road // Plaintiff safety on the which exception, of a State § 14501(c)(2)(A) with (emphasis 1030. damage claim above-described cannot benefit reasoning. from the Plaintiff's negligence claim is predicated on the allegedly negligent storage of the Batteries unrelated respect to to preemption. in a dilapidated warehouse, the motor 49 safety w regulatory vehicles. U.S.C. § and // an authority therefore 14501(c)(2)(A). issue completely of not a state with excluded from Indeed, the damage to the Batteries allegedly occurred when the property was stationary the any Batteries kind damage. n when ECF were they No. 1, not loaded on, supposedly at 5. As nor suffered a result. 24 struck by, physical a vehicle and Plaintiff's of wetness negligence claim cannot evade preemption as part of a residual state's authority to impose motor-vehicle-related safety regulations. e. ICCTA's Hazardous Cargo Exception from Preemption Plaintiff advances one final argument in support of its position that the safety exception protects its negligence claim Plaintiff contends that its negligence claim is from preemption. premised therefore exception's impose . alleged the and ff cargo, on text . , is acts of entrustment w the authority limitations based on the § a excluded from preemption by preserving 49 U.S.C. of . . 14501(c)(2)(A); . of // 15 Plaintiff fails to cite a single case where the a safety State to hazardous nature of ECF No. the cargo. dangerous 26, at 10. But § 14501(c) (2) (A) was found to protect a negligence claim from preemption because such claim sought at recovery No. 26, its negligence as Am. The authorizing 1097 R.R. (9th V. Cir. has nature text state of laws types of cargo because of its of done to not claim would qualify as 14501 (c) (2) (A) . reads damage Plaintiff hazardous the § And 10. for S. of persuaded a the cargo. § 14501(c) (2) (A) that expressly hazardous nature. (observing that the Court more Dist., [the] 622 ICCTA U.S.C. naturally regulate Id.; that based on 49 // // ECF cargo. "limitation[] Coast Air Quality Mgmt. 2010) hazardous certain see Ass'n F.3d 1094, likely would For the purposes of resolving the instant motion to dismiss, the Court without deciding that lithium-ion batteries are "hazardous cargo // assumes within the meaning of § 14501(c) (2) (A) . ECF No. 25 26, at 10. not preempt substances Removal local or 56 hazardous vehicle u as hazardous cargo and hazardous exception's where text to 306 nature excepting \\ the the dumping of harmful also Whitten v. Vehicle (Tex. clause // highway route weight and Dallas of 2001) 49 U.S.C. controls pertaining height of the motor who hired another party to handle the cargo. is justify Plaintiff's it appears that the u too hazardous tt far removed position, from the especially quality of the Batteries is incidental to Plaintiff's negligence claim. In summary, App. Plaintiff's broker-directed negligent hiring claim against Smith, allegedly see 293, from preemption). It prohibit // S.W.3d the § 14501(c) (2) (A) to that wastes Corp., (describing laws 16 because Plaintiff's negligence claim — even when directed at Smith in its capacity as a broker — falls within the ICCTA's excepted Smith's preemption from preemption Motion to and provision. by Dismiss because the § 14501(c) (2) (A) , as to Count VI claim the is Court (Negligence - not GRANTS Smith) tt of Plaintiff's Complaint. 16 Plaintiff's argument on the applicability of hazardous the cargo portion of the safety exception is further undermined by the omission of the term "brokers from the safety exception's text, Seventh Circuit found telling. See Ye, 74 F.4th 453 Uber Freight, LLC, No. 5:23-cv-00073, 2024 U.S. Statutory *10 (W.D.N.C. Jan. 27, 2024) {"[T]he V . an omission that the at 461; Dist. preemption applicable to brokers does not have a safety exception."). 26 see also Mays LEXIS 15434, at provision 2 . Count In addition to Plaintiff alleges pleading in Count a III Bailment III negligence that claim Smith breached its duties, which purportedly included exercising bailee for while hire in the bailment receiving, DNK's [sic] ECF u possession. in No. claim must 1, handling, and at and be dismissed as a by the Carmack Amendment and/or the ICCTA. In response. a Plaintiff maintains that the contract-based capacity as a bailment and broker, Plaintiff preemption. claim argues if that the the care of exclusive, that as goods lawful Plaintiff's law claim preempted ECF No. 23, at 3, 8. ICCTA does not preempt directed even storage contends state Smith, bailment reasonable Trinity's Smith 7. against against claim ICCTA's preserves the bailment claim from preemption. 17 did Smith in its qualify for safety ECF No. exception 26, at 9- 11. Plaintiff conferred has under invoked 28 U.S.C. this § Court's 1332, diversity and thus jurisdiction. Virginia law See Erie establishes the elements required for a bailment claim. R. Co. V. bailment one who Tompkins, is is defined not the 304 as U.S. the owner. n 64, 80 (1938). the rightful K-B Corp. V. Under Virginia law. possession of Gallagher, 218 goods by Va. 381, District courts have frequently held that bailment claims sounding in See Ameriswiss Tech., 888 F. tort law are clearly preempted by the ICCTA. 2022 U.S. Dist. LEXIS 207436, Supp. 2d at 207-208; see Siaci Saint Honore, 17 at *11. 27 384, of 237 S.E.2d 183, lawful the 185 possession, thing as the (1977). however Accordingly, created, property of and another that it is duty "the element to creates account for the bailment. regardless of whether or not such possession is based on contract in the Va. may ordinary 321, 327, bring a negligence of Id. sense. 143 S.E.2d tort (quoting 923, cause 927 of Crandall the defendant/bailee, Woodard, 206 A plaintiff/bailor (1965)). action v. based upon the alleged or the plaintiff/bailor may bring a contract action based upon the bailee's alleged breach of a bailment Va. 87, Volvo contract. 92, 387 S.E.2d 763, a. Considering White 766 Corp. v. Vineyard, Bailment Plaintiff's Claim argument that its bailment it claim survives preemption because it is contract-based. from clear opposed to that a claim In law. Volvo those bailment failure 92, White, exercise that a contract-based bailment in negligence principles the Virginia Supreme claim far as from tort Court briefly in negligence, defining contract-based not construed as predicated upon the bailee's as S.E.2d at 766 alleges is sounding sounding claims to III is difference between contract-based bailment claims explained the and Count 239 (1990). Contract-based first Truck due care . Volvo . (emphasis added). But in White, Count 239 III, Va. at Plaintiff Smith owed a duty of reasonable care as bailee for hire in receiving, handling, and storage of goods. 28 and fails to make any reference ECF No. duties. Loan Admin. 184607, at out a of duty of Court as & 1; any at contract 7 *13 (D.S.C. contractual provision (emphasis Reporting, No. Oct. 6, contract-based doubt see 2020 an action bailment Duncan v. Cent. Dist. LEXIS U.S. that Count claim, for breach (cleaned in tort.") bailment involving ("While a bailment may arise 2020) sounds expresses added); 2:20cv2543, relationship. care by a bailee therefore a to of the up) . The can be classified III but will assume in Plaintiff's favor that Count III qualifies as such. Even after accepting the contract-based, § 14501(c)(1) held of the enforcement such of laws. 2:23-CV-21874, 2024 Indeed, Feb. 15, 2024) . only the parties' hold[] state's writ. 228-29 (1995). that claims its simply It ICCTA. finds is state >\ own, parties U.S. such amount XL common-law Ins. Dist. their these claims are Co. are same Ltd, courts have brokers // Exel at *6 (D.N.J. claims enforce and 513 courts because rely on state common law duties and thus amount to or Inc., thereby independent Wolens, district enactment v. undertakings" preempted 29 by state's contract v. preempted against 26431, agreements Inc, is not preempted by the UK LEXIS claim district to a breach of American Airlines, However, that is // self-imposed to it contract claims do not AXA bailment that true contractually-created duties ICCTA because u Plaintiff's still routine breach of that involving No. Court that of a U.S. 219, have held such State [] claims . . enact[ment] the at or enforce[ment] force and 228-29; 181 F. effect see, e.g., Supp. qualifies as 3d (internal Bekins Van Lines, that contractual law, tf . . [of an] Alpine Fresh, 250, 257 the ICCTA state marks 802 F. Inc., ICCTA preemption. Inc, (D.N.J. quotation other provision having triggering v. ("State the preempted see 2d 438, all of law statutory and tort 442 the common law and effect of force omitted); Supp. Id. Jala Trucking Corp., 2016) an other provision having law.") (finding of . also Frey (E.D.N.Y. v. 2011) plaintiff's non¬ but noting that claims routine breach of contract claims were not preempted). Plaintiff's Here, of any contract bailment claims bailment claim fails and terms. that have instead been 21-CV-03909, that . its a . bailment 2022 U.S. claim See, Dist. alleging return possession, care, duties and obligations ICCTA/FAAAA because Ameriswiss, 888 claim asserting F. it is Supp. that that 2d at a bailee 202 by // . breach type district at *11 [was] law-based w (holding failure Plaintiff's bailment 49 claim, U.S.C. even § if 30 to a violation of preempted claim); (concluding that their by see also duties 14501(c)(1).") contract-based the a bailment obligations to return the goods in an undamaged condition expressly preempted by of Siaci Saint Honore, was breached defendants the defendant's . the various 207436, custody . state tracks e.g., LEXIS as a closely dismissed courts as preempted by the ICCTA. No. to allege and tf was Therefore, as Plaintiff contends, is a far cry from a involving "routine" contractually-created private, contract claim breach of duties and promises detached from state common-law created duties and principles. In addition to the considerable number of district that have found bailment claims to be preempted by the Fourth Circuit closely in related Smith v. issue Inc, that counsels 257 (4th Cir. 134 F.3d 254, preemption. Comair, provided in analyzed the Airline Deregulation Act's preemption provision, breach-of-contract the Inc., 134 end, the F.3d at 257 Fourth preemption parties' parties' is Inc. exception The ("ADA") nearly V. is (quoting Wolens, stressed to u 'with no bargain. Wolens 513 U.S. Applying Plaintiff's breach bargain of // at the because on a finding Comair court identical actions narrow and that or out to To exception the terms enhancement / // Id. to Comair, // at 233). the confined carved designed undertakings. 513 U.S. enlargement had that from of the based on (quoting 233). principles bailment contract the contract claims. state laws or policies external to the agreement. Wolens, of 1998). self-imposed own. Circuit limited guidance favor an exception from ADA preemption for breach of enforce ICCTA, and observed that while the United States Supreme Court in American Airlines, this courts claim claim there \\ is recognized cannot reasonably be confined no in Wolens to the reference 31 terms in and Comair, classified of Count the III as a parties' to any contract terms, external see that of \\ Count III, on its face, relies on State common-law of bailment duty for recovery. u Kent and Sinclair, Sinclair on Virginia Remedies 7-1 § 18 Id. ; (noting [b]ailment is a common law relationship and resulting action ( [under Virginia cause Plaintiff's Accordingly, law])") the bailment claim falls within the ICCTA's preemption provision as a u related § . state to a provision[] . . claim service of Therefore, 14501(c)(1). bailment . having would have any to to the force . . avoid find . and effect broker. 49 It preemption. protection in of law U.S.C. Plaintiff's the ICCTA's safety exception. b. ICCTA's Safety Exception from Preemption Addressing the applicability of the safety exception to its bailment bailment 18 Plaintiff claim, claim, which is Plaintiff's citation to appears dependent Cipollone v. to again on state Liggett argue that its common-law created Group, Inc., 505 U.S. 504, should be 526 (1992) fails to buttress its position that Count III Cipollone addressed the preemptive scope of the excepted from preemption. Public Health Cigarette Smoking Act of 1969, 15 U.S.C. § 1334, a statute with a materially different preemption provision and a body of case law More to the distinct from the ICCTA and Carmack preemption doctrine. [a] common-law remedy for a point, the Supreme Court's statement that contractual commitment voluntarily undertaken should not be regarded as a applied to a plaintiff's 'requirement . . . imposed under State law claim for a breach of an express warranty, a written warranty that held t the defendant liable for a breach of its ff terms. Cipollone, 505 U.S. at 525-27. The Cipollone Court grounded this holding in the principle that a defendant's liability for a breach of express warranties derives from, and This is Id. is measured by, the terms of the warranty, not state law. consistent with Nolens, as liability for the breach of express warranty in confined to the terms of the parties' bargain, with no Cipollone is enlargement or enhancement based on state laws or policies external to the agreement. Nolens, 513 U.S. at 228. 32 is excepted from preemption as a claim that falls within duties. the authority of hazardous the § 14501(c)(2)(A); Plaintiff the a State Court thus impose nature ECF fails to to No. . of 26, . . the at cargo. As 10. cite any authority for relies on its limitations prior // 49 tt against bailment motion noted. this proposition. reasoning to w and reject hazardous provision shields its bailment Count from preemption when directed broker, U.S.C. previously Plaintiff's novel argument that the safety exception's cargo based on claim the to a is directed claim is dismiss In broker. against preempted is short, GRANTED as addresses Defendant G Street's by to Smith the even in its ICCTA Count if Plaintiff's capacity and thus The III. as a Smith's Court separate motion to dismiss next Counts V and VII of Plaintiff's Complaint. G Street, Batteries were B. G Street's Motion to Dismiss the alleged owner of the Warehouse that the Court contends damaged, Plaintiff's two counts - Bailment VII) — because Street such owed claims. Plaintiff a legal ECF No. duty 22, has to at (Count V) failed to Plaintiff 2. The where should dismiss and Negligence adequately plead as is Court required to first the (Count that G state addresses the legal sufficiency of Plaintiff's bailment claim and then turns to the negligence claim. 33 1. Count In Count Street V of breached its its V - Bailment Complaint, bailment Plaintiff duty by failing building in which the Batteries were stored. G Street seeks dismissal of Count V, to plead that G Street exercised alleges to that G maintain ECF No. 1, the at 8. arguing that Plaintiff fails "control" or "possession" over the Batteries as is required by Virginia law to state a bailment claim. ECF No. 22, at 8. Under Virginia law, a bailment, no formal contract is required to create lawful but possession . . . and for the thing as the property of another" 717 Jones, \\ requires control that failed Supp. physical over Sheridan To F. the to Co., the state control goods. Transp. end. 421, // 800 425 (E.D. F. Supp. Virginia Supreme a bailment to account is necessary. Va. coupled with Otto Wolff a duty intent to exercise Handelsgesellschaft, 1359, 1366 (E.D. Court held that claim where defendant a mbH v. Va. 1992) . a plaintiff did not exclusive possession over plaintiff's property at the time. Corp. V. Gallagher, Explaining defendant's] its 218 reasoning. control over Va. the the at 385, Gallagher 237 court [property] independent and exclusive so as to charge duty of ordinary care to safeguard it. 34 as [the] Id. S.E.2d noted a V. Possession 1989). an York 1! have K-B at 186. that [the whole was not defendant with a Virginia Applying Plaintiff bailment states has claim exclusive to against [a] t all that Warehouse at failed bailment from G adequately G Street, control Nowhere in its Bailment 5. Street had lawful In times, and n the instant facts its to case, support Complaint, a Plaintiff DNK and Trinity leased the DNK over tt to plead Street. relevant custody and law and the Trinity Batteries. exercised ECF No . 1, Count does Plaintiff allege that G possession over the Batteries, which requires physical control coupled with an intent to exercise control over the goods. Plaintiff Otto alleges Wolff, in 800 Count F. V Supp. at G that On the 1366. Street knew contrary. that DNK used the property as a warehouse and owed a duty of reasonable care as bailee for hire in providing a suitable building for the storage of goods, exclusive, As a including such Batteries, lawful possession. result. Plaintiff // has in DNK's and Trinity's while ECF No. not 1, at 8 alleged exercised legal control over the Batteries, (emphasis added). that G Street ever let alone allege that G Street exercised exclusive possession over Plaintiff's property as IS generally required under Virginia Gallagher, 218 Va. at 385, law. See K-B concedes that while its Complaint to exercise v. 237 S.E.2d at 186. Plaintiff Responding to the preceding pleading deficiencies, intent Corp. physical \\ fails control to articulate over the G Street's Cargo, Complaint does plead that G Street allowed the Batteries 35 the It \\ into its dilapidated control should warehouse be inferred. not cite any authority have and circumstances, No. the 27, intent at to exercise Plaintiff 2. exercise Virginia control Supreme It any in Court's comparable reasoning Gallagher cuts against the acceptance of such a proposition. K-B Corp. (denying V. the property was the to existence of Va. a at 385, bailment 237 where S.E.2d the at in See 186 plaintiff's located on premises owned by the defendant because defendant's charge 218 Gallagher, does the proposition that Virginia courts to the which ECF n for intent inferred from control defendant not independent and exclusive so as was with a duty of ordinary care to safeguard [the property]."). Even assuming for the sake of argument that the Court could infer G Street's the mere still physical to control of bailment S.E.2d to exercise control over Batteries by the Plaintiff fact of G Street's ownership of the Warehouse, fails element intent plead any over the possession claim. 51, possession, 53 See indicating facts Batteries, that, Morris in v. turn, which is is Hamilton, ("[F]or (1983) an that G required necessary 225 alleged Street Va. to 372, bailee had for the state 375, to a 302 have he must have both physical control over the property and an intent to exercise that control."). Therefore, even after construing the well-pled facts in the Complaint in the light most favorable to Plaintiff, Count V is 36 DISMISSED with prejudice for failure to plead sufficient facts to state a claim for bailment against G Street. 2. Count VII In Count VII, Plaintiff - Negligence alleges that G Street of care as to the property stored in its Warehouse was G Street's business and invitee, that G "owed a duty because // Street Lotte allegedly breached its duty by failing to maintain the Warehouse wall collapsed and damaged the Challenging this position, be dismissed Street owed as a Plaintiff legal negligence claim. To state has duty claim to failed 29, for at S.E.2d tort 419, 420 exists Lexington, (1992) a is 281 Va. 630, 636, for 10. 708 negligence that G Virginia law, a a violation of that duty and up). of 244 Because cannot Va. Whether law. the 827 finding negligence. arise 309, a at // 311, legal Volpe // S.E.2d 824, a prerequisite to a finding of liability under Marks, question quotation marks omitted). IS at 9. v. (cleaned pure 1, to adequately allege negligence Burdette damage. No. a prerequisite for stating a Lotte, plaintiff must allege a legal duty, resulting ECF G Street argues that Count VII should ECF No. a Batteries. that V. (2011) of a the all 421 duty in City of (internal legal duty question until it of is established that the man who has been negligent owed some duty to the person Tinqler v. who seeks to Graystone Homes, make him Inc., liable 298 Va. 37 for 63, 79, his 834 negligence. ft S.E.2d 244, 253 (2019); S.E.2d 393, In Jeld-Wen, 397 Inc, v. Gamble, 256 Va. 144, 149, 501 (1998). addition to these general precepts of negligence law. certain principles govern the duties owed by an owner of property to those on his land, that is a subset Jr., 2 with Premises a claim of broader negligence Liability 3d by premises liability a body of law known as a § 36:1 plaintiff See law. (2016 injured Louis Lehr, When presented ed.). on A. another's land. a reviewing court will determine whether a duty of care was owed to the and may assess injured party. duty by classifying licensee, or Funkhouser, invitee 299 Va. relevant here, permitted to directly or the injured of 471, 493, a business enter or the 16 (Norfolk, Dictionary 2018) (10th ed. on for a business dealings invitee.") purpose up). 186 the directly or Visitor, The invitee a duty of ordinary care, possessor of is a purpose 101 Va. or Cir. Black's 95-1769, Law 1996 ("Anyone who enters indirectly the As landowner's Wilson, (4th Cir. 1996) v. is invited or for Lunsford, No. a trespasser. (2021). land with of Shoemaker [s]omeone who with the possessor of (cleaned 174, Business Frye v. a owner. Williams v. (quoting and extent either another's connected U.S. App. LEXIS 25711, at *10 property S.E.2d invitee is 2014)); as property possessor's business dealings. 9, existence party 856 remain indirectly the connected with land is a business property owes an which includes maintaining the 38 in a reasonably safe condition for the premises Knight v. Moore, 179 Va. 139, 145-46, 18 invitee's visit. S.E.2d 269 266, (1942). Recovery from a landlord/owner for a breach of a duty to maintain the premises is available to both a tenant and a business invitee of a 571, See tenant. 572-73 Oliver v. Cashin, 192 there is claim it appears some 543, 65 S.E.2d as ordinary to 12(b)(6) whether negligence liability. See Kessler v. App. 7944, at claim against this from the parties' uncertainty alleges LEXIS 540, (1951). Considering Plaintiff's negligence background, Va. *12 the or Visteon Corp., (6th Cir. that negligence in premises 04-2056, 2006 U.S. No. 2006) briefing instant sounds legal ("[I]t is clear that ordinary negligence and premises liability describe two distinct theories of ([ordinary negligence]), V. Occidental (2020) Dev., (explaining arising from liability: negligence No. that ordinary condition of the land.") one flows from the other from possession."); 351082, 2020 Mich. law the negligence App. LEXIS distinguishes and (cleaned up). claims actions see Spitz 7844, between premised at *7 claims on a In an ordinary negligence claim, a plaintiff's theory of the duty owed by a defendant flows from defendant's a conduct. For example, a plaintiff may allege assistance in moving property and that he sought a defendant's that the defendant failed to exercise 39 due care in moving the property, U.S. resulting App. By LEXIS in 7944, contrast, injury. at *12. in a premises from occupier of premises liability claim is thus that defendant's land. flows it is clear negligence the . . . maintain alleges the allegation liability ECF No. failure building sounding Ed. ) . in in and See by rather to a liability possessor, defendant arises Plaintiff's premised G duty as the or in solely negligence Street's owner of that G Street, 1, at 10 a from as claim. liability in the property. the {emphasis added). which the Batteries liability premises passive negligence, to do something to injured party. owed owner, \\ owner of 3 Indeed, G Street breached its duty by failing to that involves an claim, owed a duty of care as to the property stored Warehouse. Plaintiff 2006 separate and distinct from any Plaintiff alleges Warehouse. its has law on G Street's the Warehouse in Plaintiff 04-2056, Id. these principles that as duty conduct, defendant's ownership of land. Applying No. liability duty The Id. from Kessler, 19 emanates duty the an meaning were stored. because the an premises tortfeasor's its property resulted in harm to the Florida Torts § Because Plaintiff's negligence 90.06 (Matthew Bender, Rev. count here plainly relies In this example of an ordinary negligence claim, the defendant's conduct provides the basis for the defendant's liability, and the defendant's duty to the plaintiff is based on the defendant's obligation to conform to a moving standard of care when engaged in the relevant conduct 603 Fed. App'x 121, plaintiff's property. See Synovus Bank v. Tracy, (4th Cir. 2015). 40 the 124 on G Street's status the as owner of the Warehouse liability — and does not rely on G Street's to impose affirmative conduct to state a duty owed to Plaintiff while G Street engaged in said conduct — the claim sounds in premises liability law, analyzed accordingly. Plaintiff's liability See invocation of law such as 1 Landau & Martin, (perm. This 20 ed. , rev. conclusion concepts "business is strengthened exclusively invitees, found ECF It vol. The 2024). is undisputed that Accordingly, Lotte, the based on the classified as 1, at 10. Premises Liability Law and Practice § 1.05 Court therefore parties' facts a business disagreement G Street. to claim relies on 21 ECF centers pled in Plaintiff's invitee of proceeds Id. Plaintiff's premises the duty owed by a property owner to invitees. 7. by in premises No. analyze Count VII as a premises liability claim. It and must be No. on at whether Complaint, See 27, may be ECF No. 29, at While ordinary negligence and premises liability are two distinct theories of negligence liability, a plaintiff is not precluded from also 20 alleging conduct an ordinary while on his negligence own land. claim See based Kessler, on No. a defendant's 04-2056, 2006 negligent U.S. App. But here, Plaintiff has not alleged a duty premised on G Street's failure to exercise due care in its affirmative conduct while in the Warehouse, and in fact never even alleges that a G Street LEXIS 7944, at representative time. See ECF *17. was No. physically 1, at present in the Warehouse at the relevant 10. Plaintiff opposing G Street's motion to dismiss, the characterized its negligence count against G Street as follows: complaint states a cause of action for negligence against G Street for its failure to satisfy its common law duty to maintain the roof that collapsed . . . damaging the lithium ion batteries placed therein by Smith on behalf 21 In brief its v\ of Lotte invitees. G Street may be liable business invitees breaching a common law duty to maintain the premises ECF No. 27, at 7-8 (emphasis added). both negligently n 41 for for 9 . It appears business invitee the Batteries, No. 1, at As that Plaintiff's is premised on were stored in characterization of the the fact G that Lotte Lotte's Street-owned as property, Warehouse. ECF 10. noted above, an invitee under Virginia law is someone who is invited or permitted to enter or remain on another's Williams, // Richmond (1964) a v. 101 205 Grizzard, ("[W]e Va. Cir. Va. have held one at 298, 16 {emphasis 302, 136 to be an invitee: an express invitation to the visitor . . . added) ; S.E.2d see 827, 830 Where there (1) ( [or]) land is if the premises are thrown open to the public and the visitor enters pursuant to the purposes definition, the for Plaintiff's Batteries, while said control // of Plaintiff either not invited they in were At open.") states the under that Warehouse pleaded any owned the enter Warehouse the definition of premises a business provided by any G 136 S.E.2d at 830; 42 G street custody No. that Street 1, at Lotte or that 234 Va. 205 527, a the Lotte Grizzard, 5. was had invitee under Virginia Webb, and with consistent indication see Wright v. this property. by ECF indicating facts with Lotte's exclusive the communicated with G Street or DNK/Trinity. 302, odds lessees DNK and Trinity. into Plaintiff are Complaint stored Warehouse has conventional has were Batteries representative nor which law. ever Va. 530, at 362 S.E.2d 919, Virginia, 920 (1987); 44 Va. This L, mismatch see also M. Rev. 804, between 810 Del., when considering Plaintiff's the Invitee Status definition doctrinal purpose The legal category of invitee exists status a someone determine Stores the E. , (5th Cir. 192, 194 invited person liability L. P. , No. 2023); see (1982). to injured enter on of the 22-60269, Bauer v. U.S. Harn, remain on business land 31, a invitee to classify the land so v. LEXIS invitee for the Keen App. 223 Va. Because a business or a of else's landowner. 2023 of the concept is all the more category. of in (1958). invitee and case law applications of glaring Note, as Wal-Mart 18515, 36-37, to at 286 S.E.2d "is a person who purpose *4 directly is or indirectly connected with business dealings with the possessor of the land, // that business invitee is owed a specific duty of care some fashion. encouraged by the owner to enter the property that must. in turn. by the be landowner kept safe Liability of (emphasis for since the the This has Second visit. Possessors of added). person Land to rationale been, Restatement Persons for in on the conferring of Torts, Land, a § 332 business invitee-based duty does not apply with the same force here, where there was no invitation to Lotte by G Street or DNK/Trinity, thus no Therefore, attendant duty Plaintiff's of care attempt to owed to a visiting shoehorn Lotte 43 and G and invitee. Street's attenuated relationship into invitee-based negligence a business claim is inapposite and unpersuasive. Addressing the disjuncture between its Complaint Plaintiff Virginia law's conception of a business invitee, a number of property cases owes that should a does be of not appear classified protections of cites duty the proposition care to that the invitees. cites owner of ECF No. 27. none of these cases demonstrate how or why Lotte, Importantly, party to support and such Standard Oil as to a v. ever business ECF status. Co. have No. 27, Wakefield, premises. entered the invitee at or enjoy Plaintiff 7. which does a the first acknowledge \\ the duty of every man to so use his own property as not to injure the persons or property of others. 831 But (1904) . context of person the who w Standard well another — where the Oil settled authorizes the 102 // 824, 828, 47 acknowledged this duty in law that rule use authorizing of Va. of a person the common dangerous has S.E. // 830, instrument reason to the a by know that the dangerous instrument is likely to produce injury - may owe a duty to Standard the subsequently Oil does not injured provide any Accordingly, Id. person. support for Plaintiff's position that G Street owed Lotte a duty of care because Lotte was a business Similarly, 178 S.E. 34, 22 invitee of G Street's. 22 Plaintiff also cites Raylass Chain Stores, Inc, v. De Jarnette, 163 Va. 938, 943, 35 (1935), cited by Plaintiff, does not suggest that invitee 44 Quisenberry v, S.E.2d 805, 810 to keep Huntington (2018) Ingalls, property proving a particular relationship injured party. ECF No. 27, at were strangers at the accident). Quisenberry, And Quisenberry while negligence law that Plaintiff's does not Lotte's Rule rely on Va. 233, 296 does does the However, 243, 818 of not depend landlord and on the the Quisenberry Court context of time personal injury to the plaintiff safe between n 6. provided that observation in the parties 296 for the proposition that a landlord's duty invitee's a business Inc., an accidents where incident that the caused (such as in the context of a car Va. at 243-44, acknowledge 818 S.E.2d some at 810. principles of could conceivably be availing to Plaintiff, 12(b)(6) these briefing other establishes principles but that instead Count relies VII on supposed status as G Street's business invitee to plead the requisite duty for its negligence claim. not addressed Such a position is in nor buttressed by Quisenberry, plainly stretched the definition of business as Plaintiff has invitee beyond what And while Love v. a premises. 707, 709 (1990), also cited by Plaintiff, does recognize that a landlord cannot delegate its common law duty to safely maintain its premises, there are two dipositive factual status can flow from property entering Schmidt, 239 va. 357, 360, 389 S.E.2d differences between most importantly, Love and the facts of the instant case, First, and Love involved a personal injury to the plaintiff while she was physically present on the premises, id. at 360, whereas here, only Second, the landlord in Love leased property entered G Street's premises, only subparts of the premises and had an ongoing duty to maintain the id., whereas here, the allegations in Plaintiff's "common spaces. Complaint do not suggest that G Street leased only subparts of its See ECF No. warehouse and continued to operate/maintain "common spaces. 1. 45 the concept can bear. Id. ; see Injury Law In Virginia § 21.4 At Plaintiff bottom, owner of control foot when the the And 23 owner of landlord's the Plaintiff 573 tenant, has also persuaded 1 Personal the Court that premises, nor not himself suffered surveyed by any this v. Cashin, the 192 personal 24 540, Va. stepped Court Plaintiff's position. Oliver to a exclusive custody and said property has authorities cited Friend, a business-invitee-based duty counsel against acceptance of 571, not property under a tenant-lessee's on m3 ury. & (2023). has landlord may plausibly owe Sinclair further The Court 65 S.E.2d 544, a landlord may owe a duty to a even when the tenant is in exclusive possession and control of the (1951) for the proposition that But Plaintiff has premises, when the landlord enters to make repairs, failed to plead any facts indicating that G Street entered the Warehouse to make repairs, and thus cannot benefit from the reasoning in Oliver. Id. ; see ECF No. 1. To combat G Street's motion to dismiss. Weaver Mercantile Co. v. Thurmond, 68 W. Va. 24 (1911) where a defendant-owner was water to his hotel burst, causing found water Plaintiff relies 530, 536-37, liable when to flow off 70 a heavily S.E. tank the 126, on 129 supplying defendant's But Weaver is not ECF No. 27, at 7. property into the plaintiff's store, First, West Virginia courts have a cure-all for Plaintiff's Complaint, dealt with maintaining a nuisance," Noone v. read Weaver as a case that Price, 171 W.Va. 185, 191, 298 S.E.2d 218, 225 (1982) and have explained based on the refusal to shift liability that the reasoning in Weaver is w \\ away from the entity that profits from the abnormally dangerous activity. r/ Evans V. Mutual Mining, 199 W. Va. 526, 533, 485 S.E.2d 695, 702 (1997). Weaver appreciably supports Plaintiff's Neither interpretation of that does not allege a nuisance nor an negligence claim, a claim abnormally dangerous activity, nor any property damage to a neighbor as a result of the escape of such a dangerous activity or substance, See ECF for Weaver to lend support to Plaintiff's argument, the 1. Moreover, reasonable inference" that G Street Court must first accept Plaintiff's did not surrender control of the entire Warehouse and therefore had a duty No. to at maintain 7. But the common such an spaces retained inference complaint fails to articulate any is n under its unwarranted common space u control. where here, in the ECF No. 27, Plaintiff's Warehouse under G Street's control, Rather, Plaintiff's Complaint indicates that G Street did surrender control of the entire Warehouse; Plaintiff has alleged that DNK and Trinity are under common ownership with a principal place of 46 here does not rather holds decide that whether G Plaintiff's Street owed contention Lotte that a duty based on Lotte's status as a business is Given untenable. for alternative basis Plaintiff's Complaint against G that a Plaintiff duty fails to Therefore, Street. owed by Street not G a owed but Lotte presented Street claim Street's duty, invitee of G Street has state G G any to for motion to an Lotte, negligence dismiss is GRANTED and Count VII is DISMISSED without prejudice. IV. For motion the to reasons set dismiss Accordingly, forth of the above. III Counts Smith) (Negligence CONCLUSION Court Smith) (Bailment Plaintiff's GRANTS Complaint. Smith's and ECF VI No. 19. the Court DISMISSES with prejudice Counts III and VI (Negligence - Smith). The VII of Court Court GRANTS Plaintiff's DISMISSES G Street's motion ECF Complaint. with prejudice to No. Count V dismiss 21. and Counts V and Accordingly, DISMISSES the without prejudice Count VII. business located DNK/Trinity at "operate[] 905 G the Street, storage Hampton, warehouse" VA, 23661, with Trinity from "handl[ing] logistical support for the Warehouse leased and operated by DNK. 1, at which ECF No. 3. 25 Plaintiff's Complaint contains two separate allegations under Count VI. The Court No. 1, at here dismisses only Count VI 9. 47 Negligence Smith. See ECF The Order to IT Clerk all IS is REQUESTED counsel SO of to send a copy of this Opinion and record. ORDERED. /s Mark CHIEF Norfolk, May _*] Virginia , 2024 48 UNITED S. Davis STATES DISTRICT JUDGE
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
