United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is Defendants PrimeCare Medical of West
Virginia, Inc., PrimeCare Medical, Inc., Kaitlyn Perry, Jerry
Johnson, Roxana Saltsgaver, Kim Jewell, Megan Berry, and
Shawana Bradshaw Downs's (“PrimeCare
Defendants”) Motion to Dismiss the Crossclaim of James
Chandler [ECF No. 119] and Motion to Dismiss the Crossclaim
of Michael Toney and Jaburs Terry [ECF No. 122]. For the
reasons that follow, the Motions are
case arises out of the medical treatment and death of federal
pretrial detainee Dr. Charles Knouse. On August 4, 2017,
Magistrate Judge Omar J. Aboulhosn ordered the authorities of
South Central Regional Jail to house Dr. Knouse in the
medical unit and immediately resume his prescription
medications. Compl. Ex. B [ECF No. 1-2]. As alleged in the
Amended Complaint, the defendants failed to adhere to that
court order, which ultimately led to Dr. Knouse's
Chandler, Toney, and Terry (“Prison Defendants”),
in their Answers to the Amended Complaint, filed crossclaims
against the PrimeCare Defendants for indemnification [ECF
Nos. 103 & 104]. They allege that a contract exists
between them and the PrimeCare Defendants and that under the
contract, the PrimeCare Defendants agreed to
indemnify, defend and hold harmless the State and the Agency
(WVRJA), their officers, and employees from and against: 1)
any claims or losses for services rendered by any
subcontractor, person or firm performing or supplying
services in connection with the performance of the contract;
and 2) any claims or losses resulting to any person or entity
injured or damaged by PrimeCare in its delivery of services.
Answer Am. Compl. 22 [ECF No. 103]. On December 12, 2018, the
PrimeCare Defendants moved to dismiss the crossclaims for
failure to state a claim pursuant to Rule 12(b)(6).
motion to dismiss filed under Rule 12(b)(6) tests the legal
sufficiency of a complaint or pleading. Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Rule 8
requires that a pleading contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). As the Supreme Court
stated in Ashcroft v. Iqbal, that standard
“does not require ‘detailed factual
allegations,' but it demands more than an unadorned,
the-defendant-unlawfully- harmed-me accusation.” 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “[A]
plaintiff's obligation to provide the ‘grounds'
of [her] ‘entitle[ment] to relief' requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. A court cannot accept as
true legal conclusions in a complaint that merely recite the
elements of a cause of action supported by conclusory
statements. Iqbal, 556 U.S. at 677-78.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Id. at 678 (quoting Twombly, 550 U.S. at
570). To achieve facial plausibility, the plaintiff must
plead facts that allow the court to draw the reasonable
inference that the defendant is liable, and those facts must
be more than merely consistent with the defendant's
liability to raise the claim from possible to plausible.
Prison Defendants failed to state a claim for relief. In West
Virginia, a party may pursue indemnification through the
claims of express or implied indemnity. See Syl. Pt.
1, Valloric v. Dravo Corp., 357 S.E.2d 207 ( W.Va.
1987). “One of the fundamental distinctions between
express indemnity and implied indemnity is that an express
indemnity agreement can provide the person having the benefit
of the agreement, the indemnitee, indemnification even though
the indemnitee is at fault.” Id. at Syl. Pt.
1. However, “contracts will not be construed to
indemnify one against his own negligence, unless such
intention is expressed in clear and definite language.”
Syl. Pt. 3, Sellers v. Owens-Illinois Glass Co., 191
S.E.2d 166 ( W.Va. 1972). The rules governing the requisites
and validity of contracts generally apply to contracts of
indemnity. Id. at 169.
construing a contract of indemnity . . . the primary purpose
is to ascertain and give effect to the intention of the
parties.” Moore v. Chesapeake & Ohio Ry.
Co., 493 F.Supp. 1252, 1269 (S.D. W.Va. 1980).
“[W]here contract provisions are ambiguous, . . . it is
improper to grant a motion to dismiss. Lee Enterprises,
Inc. v. Twentieth Century-Fox Film Corp., 303 S.E.2d
702, 705 n.3 ( W.Va. 1983). But “[w]here the terms of a
contract are clear and unambiguous, they must be applied and
not construed.” Syl. Pt. 2, Bethlehem Mines Corp.
v. Haden, 172 S.E.2d 126 ( W.Va. 1969). “Contract
language is considered ambiguous where an agreement's
terms are inconsistent on their face or where the phraseology
can support reasonable differences of opinion as to the
meaning of words employed and obligations undertaken.”
Syl. Pt. 6, State ex rel. Frazier & Oxley, L.C. v.
Cummings, 569 S.E.2d 796 ( W.Va. 2002). “The term
‘ambiguity' is defined as language reasonably
susceptible of two different meanings or language of such
doubtful meaning that reasonable minds might be uncertain or
disagree as to its meaning.” Syl. Pt. 4, Estate of
Tawney v. Columbia Nat. Res., 633 S.E.2d 22 ( W.Va.
2006). “The mere fact that parties do not agree to the
construction of a contract does not render it ambiguous. The
question as to whether a contract is ambiguous is a question
of law to be determined by the court.” Syl. Pt. 1,
Berkeley Co. Pub. Serv. Dist. v. Vitro Corp., 162
S.E.2d 189 (1968).
as alleged in the crossclaim, the Prison Defendants failed to
state claim for indemnification for their own conduct. While
the language in the contract unambiguously requires PrimeCare
to indemnify the Prison Defendants for PrimeCare's
conduct “in its delivery of services” or
“any claims or losses for services rendered by any
subcontractor, person or firm performing or supplying
services in connection with the performance of the contract,
” the contract lacks clear and definite language
expressing the parties' intent to indemnify the Prison
Defendants-the indemnitee-for the Prison Defendant's own
conduct. Cf. Sellers, 191 S.E.2d at 170 (finding
that the following contract language was not clear and
definite to entitle the indemnitee to indemnification:
“[Indemnitor] shall indemnify [indemnitee] against all
claims for damages arising from accidents to persons or
property occasioned by the [indemnitor], [its] agents or
employees.”). In other words, reasonable minds would
agree that the contract does not contain clear and definite
language requiring the PrimeCare Defendants to indemnify the
Prison Defendants for the Prison Defendant's own conduct.
Moreover, any claim for indemnification based on the
PrimeCare Defendants' conduct is moot because the
PrimeCare Defendants have already settled with the plaintiff
and the Prison Defendants have not alleged that they paid any
settlement on PrimeCare's behalf. See Order
Approving Settlement & Distributing Proceeds [ECF No.
126]. The only remaining claims in the Amended Complaint are
against the Prison Defendants directly. While Prison
Defendants may be entitled to a reduction from any ...