United States District Court, S.D. West Virginia, Beckley
ROBERT L. JOHNS, Trustee, Plaintiff,
R & D TOWING, INC., Defendant.
MEMORANDUM OPINION AND ORDER
W. VOLK UNITED STATES DISTRICT JUDGE.
are Defendant's Motion for Summary Judgment and
Plaintiff's Motion for Partial Summary Judgment [Dckt.
26, 28], both filed July 30, 2019. Plaintiff Robert L. Johns,
Trustee (“Trustee”), filed a Response on August
18, 2019 [Dckt. 33], and Defendant R & D Towing, Inc.
(“R & D”) replied on August 20, 2019 [Dckt.
35]. R & D filed a Response on August 18, 2019 [Dckt.
32], and the Trustee replied on August 20, 2019 [Dckt. 34].
Facts and Procedural History
matter arises out of a Chapter 11 bankruptcy case filed by
debtor Machinery Transport, Inc. (“MTI”). The
case was subsequently converted to a Chapter 7 liquidation
case. The Trustee was then appointed to administer the
Chapter 7 case. The Trustee initiated an adversary proceeding
on behalf of MTI against R & D alleging breach of
contract, negligence, and destruction of property. The
undisputed facts are as follows.
D is a towing business with an office, garage, and impound
lot located in White Sulphur Springs near Howard's Creek.
MTI stored personal property and equipment on R & D's
property. At all relevant times, both R & D and MTI were
owned by Mr. Ronald Cook. On June 23, 2016, catastrophic
flooding occurred in White Sulphur Springs, as well as other
areas in southern West Virginia. Upon observation that
Howard's Creek was rising, Mr. Cook moved MTI's
equipment within an “insured area” of the
property. Thereafter, Mr. Cook left R & D to assist his
neighboring business owner with placing sandbags around the
doors of her restaurant. Mr. Cook then went to Lowe's to
purchase additional sandbags but was unable to return to the
restaurant due to the high flood waters. R & D's
property flooded, and MTI's equipment was damaged as a
result. After the flood, MTI requested compensation from R
& D for the damaged equipment, which R & D denied.
16, 2018, the Trustee initiated this proceeding on behalf of
MTI against R & D alleging breach of contract,
negligence, and destruction of property. Specifically, the
Trustee alleged that R & D had a duty to exercise
ordinary care for the safety and security of MTI's
equipment and failed to exercise such care, which caused MTI
to suffer injury and damages. The Trustee sought damages for
the injury to MTI's equipment, as well as the loss of use
and market value of the equipment.
30, 2019, R & D and the Trustee filed cross-motions for
summary judgment. R & D moved for summary judgment on the
grounds that there is no genuine issue of material fact and
that it is not liable for the damages to MTI's equipment.
The Trustee moved for partial summary judgment on the grounds
that there is no genuine issue of material fact and that R
& D is liable for the damages to MTI's equipment as a
matter of law.
Governing Standards and Analysis
Rule of Civil Procedure 56 provides that summary judgment is
proper where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
burden is on the nonmoving party to show that there is a
genuine issue of material fact for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“The nonmoving party must do so by offering
‘sufficient proof in the form of admissible
evidence' rather than relying solely on the allegations
of her pleadings.” Guessous v. Fairview Prop.
Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting
Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th
Cir. 1993)). The Court must “view the evidence in the
light most favorable to the [nonmoving] party.”
Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal
quotation marks omitted); Variety Stores, Inc. v.
Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir.
faced with cross-motions for summary judgment, the Court
applies the above standard and must consider “each
motion separately on its own merits to determine whether
either of the parties deserves judgment as a matter of
law.” Rossignol v. Voorhaar, 316 F.3d 516, 523
(4th Cir. 2003) (internal quotation marks omitted).
“The court . . . cannot weigh the evidence or make
credibility determinations.” Jacobs v. N.C. Admin.
Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015);
see also Lee v. Town of Seaboard, 863 F.3d 323, 327
(4th Cir. 2017). In general, if “an issue as to a
material fact cannot be resolved without observation of the
demeanor of witnesses in order to evaluate their credibility,
summary judgment is not appropriate” Fed.R.Civ.P. 56
advisory committee's note to 1963 amendment.
is created by operation of law when there is “a
delivery of the property for safe-keeping by the bailor, and
an acceptance thereof by the bailee.” Barnette v.
Casey, 124 W.Va. 143, 146, 19 S.E.2d 621, 623 (1942). In
negligence actions involving bailment, the Supreme Court of
Appeals of West Virginia has observed as follows:
In an action involving a bailment for hire proof by the
bailor of delivery of the property to the bailee and of his
failure to redeliver it upon legal demand establishes a prima
facie case of negligence upon the part of the bailee and the
burden of going forward with the evidence shifts to the
bailee to show that his failure to redeliver was without his
fault or negligence; but the burden of proof does not shift
with the evidence but ...