United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
are two separate motions to dismiss, filed on February 1,
2017, by cross defendants Spirit Services of WV, LLC,
("Spirit") and Brandon Dow.
and Wendy Fink filed this action on September 8, 2016. The
Finks claim that the defendants are liable for injuries
stemming from a crash that occurred when one or more of the
tires on the truck driven by Erik Fink, an employee of
Spirit, exploded. It is alleged that the defendants knew that
the tires were faulty and deliberately or negligently failed
to make repairs. The Finks filed the action in this court,
invoking the court's diversity jurisdiction.
to the complaint, Spirit leased a number of tanker trucks,
used "to haul waste materials, " from Worldwide
Equipment, Inc.; Worldwide Equipment Enterprises, Inc.;
Worldwide Equipment Leasing, Inc.; and Worldwide Equipment of
West Virginia, Inc. (together, "Worldwide").
Complaint ("Compl.") ¶ 9. Spirit also
contracted with Dow "to provide health and safety
consultation" with regard to regulatory compliance.
Id. ¶ 15. "[A] 11 reports of the upkeep
and maintenance of the subject truck were directed to . . .
relevant times, Erik Fink was a truck driver employed by
Spirit. Id. ¶ 8. Prior to the crash, Worldwide
informed Erik Fink "that the subject truck had faulty
tires that needed replaced." Id. ¶ 12.
Worldwide had "discovered the faulty tires . . .
approximately one week prior" to Erik Fink retrieving
the truck from Worldwide. Id. Despite its discovery,
Worldwide "instructed . . . [Erik Fink] to have [Spirit]
repair the faulty tires" and "that [he] should be
able to drive the subject truck for an additional two
Fink then informed Spirit of the condition of the tires on
two separate occasions, yet Spirit refused to replace the
tires because, as a leased truck, the "[tires were] not
worth the time or money to fix." Id.
¶¶ 13, 16. Erik Fink also notified Dow of the
condition of the tires, but Dow failed to determine whether
the faulty tires should have been repaired or replaced.
Id. ¶¶ 13, 15.
September 11, 2014, "one or more" of the tires on
the truck driven by Erik Fink exploded. Id. ¶
17. The resulting crash caused Erik Fink to suffer serious,
ongoing injuries and medical procedures. Id. ¶
18. A "post-incident investigation . . . revealed that
the subject truck's tires were defective and
unsafe." Id. ¶ 19.
January 11, 2017, Worldwide filed a crossclaim against Spirit
and Dow,  seeking indemnification and contribution
for any judgment entered against it. See,
e.g. Crossclaim of Worldwide Equipment Leasing, Inc.
("Crossclaim") ¶ 3. The Supreme Court of
Appeals of West Virginia recognizes two types of indemnity:
"express indemnity, based on a written agreement, and
implied indemnity, arising out of the relationship between
the parties." Syl. Pt. 1, Valloric v. Dravo
Corp., 17 8 W.Va. 14, 15 (1987). Contribution is
described as a case "when persons having a common
obligation, either in contract or tort, are sued on that
obligation and one party is forced to pay more than his pro
tanto share of the obligation." Syl. Pt. 4,
Sydenstricker v. Unipunch Prods., Inc., 169 W.Va.
440, 441 (19 82). "One of the essential differences
between indemnity and contribution is that contribution does
not permit a full recovery of all damages paid by the party
seeking contribution. Recovery can only be obtained for the
excess that such party has paid over his own share."
February 1, 2017, Spirit and Dow filed identical motions to
dismiss Worldwide's crossclaim. Both parties insist that
Worldwide has not alleged a single fact to support its claims
for indemnification and contribution. See Spirit and
Dow Memoranda in Support of Motion to Dismiss ("Mem. in
made two filings on February 15, 2017. First, Worldwide filed
an amended crossclaim. In it, Worldwide reasserts its claims
for indemnification and contribution. Amended Crossclaim
("Am. Crossclaim") ¶ 11. Worldwide also claims
that it is entitled to express indemnification from Spirit,
alleging that the lease agreement between it and Spirit
provides "that [Spirit] is obligated to
indemnify and hold harmless . . . Worldwide."
Id. ¶ 4; see id. ¶¶ 10, 12.
Worldwide responded to the pending motions to dismiss.
Worldwide argues that it incorporated into its original
crossclaim the factual allegations of the complaint. Response
to Motion to Dismiss ("Resp.") at 5-6. Those
allegations, according to Worldwide, are sufficient for its
claims for contribution and indemnification to survive.
Id. In addition, Worldwide adds that it has provided
in its amended crossclaim sufficient factual information for
its claim for express indemnification from Spirit to proceed.
Id. at 8.
Rule of Civil Procedure 8(a)(2) requires that a pleading
"contain ... a short and plain statement of the claim
showing that the pleader is entitled to relief."
Correspondingly, Rule 12(b) (6) provides that a pleading may
be dismissed for a ...