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Galloway v. Big G Express

January 7, 2008

SAM GALLOWAY, PLAINTIFF,
v.
BIG G EXPRESS, INC. AND COMMERCE AND INDUSTRY INSURANCE COMPANY, INTERVENING PLAINTIFFS,
v.
VOLVO TRUCKS NORTH AMERICA, INC., DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

MEMORANDUM AND ORDER

This civil action is before the Court on Defendant Volvo Trucks North America, Inc.'s ("Defendant") Motion to Dismiss [Doc. 28]. Plaintiff Sam Galloway ("Plaintiff") has responded in opposition to Defendant's motion to dismiss and has moved, in the alternative, to amend the complaint [Doc. 31]. Defendant filed a response to Plaintiff's alternative motion to amend [Doc. 36]. Intervening Plaintiffs Big G Express, Inc. and Commerce and Industry Insurance Company (collectively referred to as the "Intervening Plaintiffs") filed a sur reply brief to Defendant's motion to dismiss [Doc. 38]. Thus, the motions are now ripe for determination.

The Court has carefully reviewed the pending motions and responsive pleadings in light of the applicable law. For the reasons set forth herein, Plaintiff's motion to amend the pleadings will be granted, and Defendant's motion to dismiss will be granted in part and denied in part.

I. Relevant Facts

On March 4, 2004, Plaintiff worked as an operator of tractor/trailers for Intervening Plaintiff, Big G Express, Inc. [Doc. 12 at ¶ 2.] Plaintiff avers that he operated a Volvo tractor/trailer manufactured, sold, and otherwise placed into the stream of commerce of the United States by the Defendant. [Doc. 1-2 at ¶ 6.] On March 4, 2004, Plaintiff was proceeding westbound on Interstate 240 in Oklahoma City, Oklahoma while operating a 2003 Volvo tractor/trailer. [Id. at ¶ 1.] Plaintiff alleges that while he attempted to pass another tractor trailer, water splashed up from the other tractor/trailer's tires and struck the windshield of the Volvo tractor/trailer he was operating. [Id. at ¶ 2.] Plaintiff claims that the windshield collapsed into the cab of Plaintiff's tractor causing severe personal injuries to the Plaintiff. [Id. at ¶ 3.]

As a result of the alleged incident, Plaintiff and Intervening Plaintiffs claim that Defendant is strictly liable under the Tennessee Products Liability Act. [Id. at ¶ 7.] There are also claims in the original complaint that Defendant breached the implied warranties of merchantability and fitness for a particular purpose [Id. at ¶ 10.]; the proposed amended complaint claims breaches of express warranties and implied warranties of merchantability. [Doc. 33-2 at ¶ 29]. After the alleged incident, Plaintiff made a claim for workers' compensation benefits pursuant to the Workers' Compensation Act for the state of Tennessee. [Doc. 12 at ¶ 3.] The Intervening Plaintiffs, Big G Express, Inc. and Commerce and Industry Insurance Company, aver that they are entitled to a subrogation lien and/or credit for any payments made to or to be made to the Plaintiff or on his behalf to the extent of his net recovery against the Defendant.

II. ANALYSIS

Due to the interrelated nature of the Defendant's Motion to Dismiss [Doc. 28] and the Plaintiff's Motion to Amend Pleadings [Doc. 31], the Court will first address Plaintiff's motion and then proceed to address Defendant's motion.

A. Plaintiff's Motion to Amend Pleadings

Leave to amend under Federal Rule of Civil Procedure 15(a) "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). However, a court must balance harm to the moving party if he or she is not permitted to amend against prejudice caused to the other party if leave to amend is granted. Foman v. Davis, 371 U.S. 178, 182 (1962). Specifically, "a motion to amend a complaint should be denied if the amendment is brought in bad faith, for dilatory purposes, results in undue delay, or prejudice to the opposing party, or would be futile." Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995) (citation omitted); Marx v. Centran, 747 F.2d 1536, 1550 (6th Cir. 1984), cert. denied, 471 U.S. 1125 (1985)). One instance in which a proposed amendment would be futile and should therefore be denied is when it seeks to add a cause of action that is not legally cognizable. Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 425 (6th Cir. 1999).

The Court has carefully considered Plaintiff's original complaint [Doc. 1-2], the proposed amended complaint [Doc. 33], and the parties' briefs on the matter [Docs. 31, 36].

Leave to amend "shall be freely given when justice so requires," and Defendant has not shown that the proposed amended complaint was made in bad faith, for dilatory purposes, results in undue delay or prejudices the opposing party. Fed. R. Civ. P. 15(a). Because the Defendant's motion to dismiss involves similar issues as the analysis for futility of amending the complaint, the Court will grant Plaintiff's motion to amend the pleadings and consider any futility concerns as part of the analysis for Defendant's motion to dismiss.

B. Defendant's Motion to Dismiss

Because Defendant's response [Doc. 36] asks the Court to deny the amended complaint on the same basis as its motion to dismiss [Doc. 28], the Court will address Defendant's motion to dismiss in ...


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