-DEM Old Republic Insurance Company v. Spring Menders, Inc., No. 2:2011cv00069 - Document 22 (E.D. Va. 2011)
Court Description: OPINION AND ORDER denying defendant's motion to dismiss. Signed by District Judge Mark S. Davis on 7/13/11 and filed on 7/14/11. (jcow, )
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UNITED STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA Norfolk Division OLD as REPUBLIC subrogee INSURANCE of COMPANY, TIDEWATER FIBRE CORPORATION, Civil Action No. Plaintiff, 2:Ilcv69 v. SPRING MENDERS, INC. Defendant. OPINION AND This matter Incorporated's dismiss Old "Plaintiff") Rules of are 7(J). the Complaint pursuant unnecessary DENIED. process. set to the forth Complaint, and Fed. R. matter below, the oral is now to Republic" ("Old facts Court and or of ripe Defendant's for the legal motion, that oral contentions not E.D. aid Va. decision motion Federal the finds would 78 (b) ; Menders, motion examining the P. Spring 12(b)(6) argument Civ. on "Defendant") Rule After because presented Therefore, reasons the or Company's Procedure. and Court Menders" Insurance adequately decisional the Republic briefs, is before ("Spring Civil associated argument is ORDER to in the Loc. R. and, dismiss for is I. Facts and Procedural History1 A. Plaintiff of is Pennsylvania insurance with Pennsylvania. action, an its Compl. Plaintiff insurance Mack Truck. Hi. provided Fibre coverage Id. brought According springs to At the the and/or company principal At all to, among Truck install new to Spring springs the Compl. 2009, while Spring Menders' on Menders performed work on the truck. alleges that this work involved the use of included Compl. so U a 9. "hot 2005 repairs. to repair return for On June premises, H called for 7. 1 2. Tidewater agreed in this Compl. 2009, truck in company known things, Menders Fibre. was a 4, to be paid by Tidewater truck to other price the also to Menders on laws relevant to June Spring the business times coverage some point prior Complaint, of under ("Tidewater Fibre"). applied Mack existing place insurance as Tidewater Fibre Corporation This Facts a 4, Spring The Complaint work," a torch and/or welding equipment. which Id. 'The facts recited here are drawn from Plaintiff's Complaint and assumed true for the purpose of deciding the motion currently before the Court. They are not to be considered are factual findings pending motion for any to dismiss. Consumeraf fairs. com, evaluating all a Rule well-pled light most facts as to other See F.3d 12(b)(6) favorable sufficiency of 591 purpose 250, motion true the and than 255 to (4th Cir. construes in a these of the Ltd. Chevrolet, dismiss, plaintiff the complaint."). consideration Nemet v. 2009) ("...in court accepts facts weighing the in the legal While fire the truck originated truck to a amount Fibre still and/or severe approximate Tidewater at was in was alleges Id. As an - result same rights as a that in Compl. H 11. of premises, thereby resulting the amount a Menders' truck, insurance Compl. that Old Republic, obtained the the and submitted $149,750.00 salvage. Spring $151,000." which Old Republic paid. payment near fire, of on f exposing damages 10. claim to "a the in the In response, Old Republic, The total amount of this of the this payment, subrogee Tidewater damages of minus the $1,500 Complaint Tidewater Fibre, Fibre had or has any third party responsible for the loss of the truck. has against Compl. U 12. B. Based Plaintiff action a these filed a against Defendant owed on of duty factual Complaint Tidewater History underpinnings, in Defendant. negligence. to Procedural this In Court to to February alleging Count According Fibre on I, the perform two 4, causes Plaintiff Complaint, the work in 2011, accuses Defendant a manner so as to not cause a fire and damage to the truck. Compl. Defendant resulted damages to Defendant Fibre allegedly and Defendant the breached truck. breached a Defendant. had a In this Count contract duty, II, that Plaintiff existed Specifically, contractual which obligation Plaintiff to 1 14. alleges between in that Tidewater asserts properly of perform that the work on that the Mack caused the obligation. In Defendant the Count the to Plaintiff's the the Federal memorandum in Defendant of work breached Complaint, present motion Rules support of of in a that this a common Plaintiff. Thus, negligence action. law Defendant on to Civil manner contractual that contends, Plaintiff's negligence allegations claims is to meet to that failed to allege no owed basis Defendant fail Rule Defendant there Additionally, 2011, According Defendant has 28, under dismiss Plaintiff duty February Procedure. motion, I must be dismissed because breach the 1 19. filed of and by performing fire, Compl. response 12 (b) (6) truck, to for argues a that the plausibility standard established by Twombly. With respect must be to Count dismissed because specific contractual Moreover, according facts that rise II, duty to above Defendant contends that Plaintiff that failed Defendant Defendant, the has owed Plaintiff speculative to allege to has level, the claim Plaintiff. also once a not pled again, as articulated by Twombly. II. Federal defendant state P. a to Rule of Civil Procedure 12(b)(6) permits seek dismissal based on the plaintiff's claim upon 12 (b) (6). Standard of Review A which court relief can considering be a granted." motion to a "failure to Fed. R. dismiss Civ. filed pursuant the to Rule 12(b)(6) allegations in Giacomelli, 588 dismiss failure for complaint relief that Twombly, is 550 plausible 186, pleading stage. Id. possibility Ashcroft facial that v. Iqbal, the court defendant is liable A "does 12(b)(6) not a claim, N.C. a v. or the and consistent Inc. v. 2000). courts contests the the the of pleads complaint's the bound Ltd. truth by the of of "legal claim be a the unlawfully." "A claim has factual content that the complaint and Id. a the merits 1992). facts fact that F.3d facts at of Republican Party of all 213 the v. inference allegations." P'ship, Corp. facts, (4th Cir. any Atl. ask for more than sufficiency of 952 to (2009). the the claim acted reasonable truth existence Assocs. not plaintiff the has 1949 surrounding F.2d 943, the Although are draw 1937, if requirement it does defendant the tests "assume with J.D. to probability to a Requiring for the misconduct alleged." 980 should complaint Ct. state v. motion granted Bell applicability of defenses." Martin, court S. to face." However, a motion resolve a 556. when facts A be of Francis 2009). should (2007). that 129 plausibility allows 570 sufficiency complaint. claim its legal Cir. "enough impose at {4th a on 544, not "sheer state plausible does a 192 allege U.S. the plaintiff's to not assess the F.3d does must Accordingly, alleged can E. 175, be 180 is drawn the proved, Shore alleged conclusions in Mkts., (4th Cir. assumed, from the facts" and "need not accept unreasonable conclusions, A motion in to conjunction Rule 8 (a) (2) claim showing that Civ. P. 8(a)(2), what the...claim Bell Atl. U.S. 41, a (even if 327 dismiss a U.S. at Fair "even the in Id. if Id^_ and the is does which it by speculative Gibson, setting level Id^ at 555 (internal 355 forth face" complaint of R. rests...." the not the fair notice of in disbelief 556 defendant of Fed. relief," "plausible on its allegations 12(b)(6) to read 8(a)(2). statement provided the be Procedure plain upon must (quoting Conley v. to be " 12 (b) (6) entitled 555 inferences, Id. Civil grounds above fact) at is notice relief judge's (1989)). unlikely.'" (1974)) . 550 "Rule on short the doubtful allegations." 319, and all unwarranted Rule of "...give is to that omitted). based "a pleader to to Rule for the complaint right assumption as (1957)). enough facts "raise only the so Corp. , 47 pursuant Federal requires true or arguments." dismiss with as on are and the true citations countenance...dismissals a (quoting Neitzke complaint's v. Williams, factual 490 U.S. A complaint may therefore survive a motion to it appears (quoting 'that Scheuer a v. recovery Rhodes, is very 416 remote U.S. 232, and 236 III. Discussion A. 1. In Defendant's dismiss, claim for argues cause in two principal should Plaintiff Defendant alleges has support arguments be a breached contract between Defendant state to level of facts speculative Atl. Corp. v. Court will address This case diversity have been Constr. motion First, facts Plaintiff law duty, 388 F. Equip. to level 550 brought 28 U.S.C. to Defendant supporting does but a not allege rather, of U.S. Am., 544, only the 1332. by the state Inc. Tobacco v. {4th CLM claim as 555-56 Court "When a court] 368 its insured. fails to from the required by (2007). The in turn. [a 362, Complaint plausible, before ยง Plaintiff's raise [] sits." App'x. N. the and Plaintiff's these contentions applied court that Twombly, jurisdiction, district N.V. , its to why Plaintiff's allege Defendant necessary to was jurisdiction under would common contends sufficient Bell as dismissed. failed a of that Defendant breached a duty owed to Plaintiff by dint Second, the law duty memorandum negligence that common of action for negligence because that of it makes Negligence case appl[ies] court Tech., on diversity involves the law [] that in the state where Inc. v. Taiga Int'l (citing Volvo Cir. 2010) Equip. Co., Inc., 386 F.3d 581, 599-600 (4th Cir. 2004)). that Virginia law applies, The single Supreme act Court Since neither party disputes the Court will apply it here. of or occurrence Virginia can, has in certain recognized that circumstances, ttta support causes of action both for breach of contract and for breach of a duty arising both for the traditional Inc., in loss tort 281 Cloney, tort, Va. 278 Supreme Court that, in as damages.'" Va. turning permitting suffered 483, "avoid thus 491 a v. 266-67 (2009)). every breach of Virginia has order to recover of All (quoting 260, of plaintiff result Kaltman (2011) a the Am. Dunn into tort, 'the the Constr. Co., Baptist Convention result, the violation of parties 278 Va. Court a solely at v. Wade, must common by 267 virtue of the Co. v. order to tort," contract.'" 234, duty 241 Plaintiff upon which or not one existing 242 if rule tortiously Foreign Mission Bd. Va. the the (quoting determine law a duty negligently breached must be a common law duty, between in and Control, Constr. "consistently adhered to in recover breach Pest However, contract to it (1991)). has Dunn of As alleged could S. build a the its negligence claim. The Court violation of over to repairs, concludes such a duty. Defendant a so bailment that that Plaintiff has When Tidewater Fibre Defendant relationship 8 was could the turned its truck make created, alleged the requisite with Defendant being the bailee. Warehouse Co., See Penney Co. "dealt with the Corp. v. Vineyard, bailor/bailee off his created was 239 with a Hartford 263, who 267 a car to a 89-91 Volvo for & routine Indemn. (implying that entrusted (imputing v. a a a party dropped Peach, bailment to Truck maintenance Co. a White (1990) situation where mechanic is mechanic"); 87, Accident (1952) when a Va. relationship tractor performed); 260, bailee (4th Cir. Jones Transfer & facts of another case and stating that that case a 680 P.P. {discussing the of F.2d 678, v. 1969) liability 408 J.C. to 193 be Va. situation mechanic). Such is a relationship creates a duty in the bailee. When a bailment is for the mutual benefit of the bailor and bailee, the bailee must use ordinary care for the protection, preservation, and return of the bailed property. care, he damage is to If the liable the bailee to the property fails to use ordinary for any loss from the bailee's bailor resulting or failure. Volvo White Truck and distinct the parties from and and a negligence In Inc. a v. airplane Corp., case any 23 9 theory. similar may See to possession, 192 the Va. the Airport, 231, airplane sue id. in the possession of repaired. at contractual Plaintiff Alexandria Va. 232 was 91. This duty that may both under at a is separate exist between contract theory 91-93. present Inc., one, the Revenue While destroyed Aero plaintiff the defendants (1951) . duty by so in that the fire. left it Club, its could be defendants' Id. The plaintiff brought an airplane, alleging two first basis, action to separate the plaintiff recover bases for alleged that the value recovery. of As the parties the to the "had entered into a contract whereby the plaintiff had delivered the plane to the in defendants, to be good condition" breached the plaintiff 33. the their contract respect fire care neglected the vto bailee the the actions Revenue can in the and of that Revenue the plaintiff were that they fire to at the 232- contended negligent failed precautions the Supreme Aero case, Club, the in and to prevent or the spread Court Inc. Supreme is of Virginia not Court was immediately did not take that the plaintiff brought both contract and against Aero the Club, maintain an defendants. Inc. chattel See Yoemans v. is as action contract and a theory of when the Id. had 233. issue fact defendants as agreed." plane, occurrence present the "the defendants or the plaintiff return the plane basis, adequate measures the bailor bailment. second of in reads breach of fire failed to "that decide negligence a the control Id^ at issue with the that to in relevant the out Although Court and had of take thereof....'" to a result indicated and breaking asked and as in good repair and condition, With that repaired and returned to 10 45 a result, supporting under negligence destroyed Mori son, As during Va. both the a this premise theory of on the part of the the of the Cir. period 409, 410 (Loudon Cnty. 1998) his (citations bailee Plaintiff any in has either pled contractual actionable omitted) a tort common duty 2. facts sufficient speculative After also to to the examining factual level of Plaintiff has pled In Tidewater Fibre the in premises, its vehicle, Defendant which involved equipment. Compl. and/or the fire, near and $151,000." Complaint properly % facts truck, resulting Compl. alleges and/or H the truck 10. that safely use to a As to "Spring in perform operate and maintain its premises." 11 its by of Twombly. are scant, has Compl. a Hfl alleged 6-8. other the broke truck to approximate cause of this negligently work, and/or f 15. to While on work" fire to that locale "hot a Compl. motion and/or torch Menders level Court withstand the the plead negligence Subsequently, damages the Defendant's exposing to the performed of thereby in is Complaint, of to from Plaintiff allegedly 9. from that failed required the repair and/or replace damaged springs. the as allegations case, has claim plausible, present brought and distinct Defendant, Plaintiff negligence sufficient the sue sufficiency allegations although by may Consequently, separate owed that its that bailor claim. nudge the aggrieved contract."). law duty, claims concludes dismiss. or allegedly in a negligence Defendant ("An on welding out a "at severe amount damage, failed to the of the to safely While that the the fire Plaintiff facially As Court resulted has pled plausible noted above, plaintiff pleads the reasonable not it or that other negligence. of a Iqbal, fire welding like Plaintiff's principal should Plaintiff not Fibre be cannot and the as in declines for Court point the to the does in vicinity from draw the of a Defendant's dismiss Count I motion claim, dismissed. recover specific duty plaintiff's Complaint." contends to dismiss Defendant for breach which prevent that Mem. contract contract imposes damage of Supp. Plaintiff 12 also Defendant of a with breach of First, provision of defendant to Contract to why Plaintiff's affirmative Defendant The the to liable this resulted Court Breach of Defendant's reasons cited any is a demise. when court 194 9. at out equipment negligence also at the is Complaint. B. Much infer, the plausibility allows Ct. broke point Defendant, ultimate defendant S. of truck's that 129 part this negligence facial the that the at that the to Consequently, Plaintiff's has that unreasonable proceedings, for content inference on indicating claim factual conclude negligence facts "[a] alleged." torch from cannot explanation misconduct find certainly upon the Mot. has type respect asserts claim argues that between it failed "has Tidewater defendant complained Dismiss two contract because the to 3-4. to of an in Second, state a plausible claim Complaint fails for breach of contract and, therefore, the concludes that to pass muster under Twombly. 1. breach allegations As to Defendant's Plaintiff has allegedly first sufficiently breached by Fibre and "Tidewater argument, pled Defendant. Spring the the Court terms According Menders of to had a the contract Complaint, entered into an agreement whereby Spring Menders agreed to repair springs and/or install new springs on the aforesaid Mack price to be paid by Tidewater Fibre." that agreement, premises. Spring Compl. Menders a and said contractual is to be that to dismiss, of imposes it however, from has the subsequent Defendant because contract 1 the to fire Compl. 7. Pursuant to truck inside its perform represented a breach HH 18-20. its of In Defendant's that Plaintiff's Complaint contends that Plaintiff's Complaint between a duty completely failed to cite properly alleges Plaintiff upon Defendant being took obligation Defendant dismissed provision the Compl. in return for a Plaintiff alleges this created in Spring obligations. insufficient. must 8. "contractual aforesaid work" motion 1 Menders truck fails Tidewater to a single 13 by plead Fibre to prevent consumed contention. to a a and Defendant truck fire. specific entrusted Defendant, authority supporting its Under Virginia 'in an upon action the failure it on situation was the or when to escape destroyed without of In by the fault, a the failure upon. because his out delivery liability was bailee's makes latter's agreed redeliver relies without the bailor the the as may upon the shows and bailor bailment recovery or bailee the of care, he demand the lost of due bailee failure where contract right case to his contractu, exercise facie return that his to article ex ordinary predicating prima law, to this showing property but this is an affirmative defense which he must prove.' Canty v. Wyatt (quoting has Storage Revenue pled Aero such allegations Corp., Club, the precise, elements of Complaint, truck to the to Tidewater this contract has will for a the at the a pled to be Tidewater Menders to 14 elements prima to of a into % delivered 8. the H the 10. 7. the However, return an Tidewater Compl. assert in facie Plaintiff's entered Compl. to that certainly be repair U failed point Plaintiff's the Fibre Compl. opportunity requisite Plaintiff paid. condition. later could Menders to (1967) alleged contract agreed price premises. 234) . According Spring a proper have action pled and Spring in the sufficiently Menders Menders fire, of and Defendant agreement, Fibre Menders Plaintiff return that alleged Fibre at 163-64 Although contract. Spring Spring to Spring in to has 161, Va. elements. Fibre bailment wherein Pursuant vehicle a Tidewater agreement Fibre's Plaintiff Va. 192 specifics existed between Tidewater more Inc., essential regarding 208 due truck While defenses to proceedings, bailment contract and thus plead a the Complaint specific need contractual not be also contends dismissed because it claims line of across contract the fails claim. that a that right to under a breach of a pleads content inference that alleged. is the facts, inference as that allows the Plaintiff pled, liable the to dismiss the Defendant's Rules that of with reasons motion Civil to dismiss a must be inch Plaintiff's to plausible contract a breach Complaint, theory. to is the has the its Count reasonable the misconduct factual II to of allegations contract draw contractual misconduct plaintiff the a breach of Court the when mentioned for pled of As draw liable a claim. reasonable obligation and alleged. As a result, Plaintiff's Complaint. Conclusion above, under Rule common 15 negligence law the Court 12(b)(6) Specifically, Plaintiff's violation of to sufficiently pled a plausible discussed Procedure. respect alleged the to Complaint Plaintiff's court breached IV. For the elements allow for failure that plausibility defendant essential Court declines has facial that Defendant therefore the has Here, supporting The Plaintiff Complaint facts analyzing concludes above, Plaintiff's speculative Court relief a sufficiency to allege from After for duty. 2. factual Defendant dismissed duty the of Court claim, and the DENIES Federal concludes Plaintiff stated has sufficient facts which Similarly, elevate Plaintiff its has negligence also claim alleged that to plausibility. Defendant had a binding contract with Tidewater Fibre, and Defendant's actions resulted that in subsequent a plausible fact-finding breach may of certainly contract. challenge While Plaintiff's allegations, Plaintiff has alleged sufficient facts to withstand a motion to dismiss. The Clerk is DIRECTED to send a copy of this Order to all counsel of record. IT IS SO ORDERED. /s/ Mark S. Davis UNITED STATES DISTRICT JUDGE Norfolk, July J3 Virginia , 2011 16
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