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Fink v. Spirit Services of WV, LLC

United States District Court, S.D. West Virginia, Charleston

September 25, 2017

ERIK FINK and WENDY FINK, Plaintiffs,


          John T. Copenhaver, Jr. United States District Judge.

         Pending are two separate motions to dismiss, filed on February 1, 2017, by cross defendants Spirit Services of WV, LLC, ("Spirit") and Brandon Dow.


         Erik 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.

         According 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 . . . Dow." Id.

         At all 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 months." Id.

         Erik 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.

         On 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.

         On January 11, 2017, Worldwide filed a crossclaim against Spirit and Dow, [1] 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." Id.

         On 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 Supp.").

         Worldwide 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.

         Second, 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.


         Federal 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 ...

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