Papineau v. Brake Supply Company, Inc. (W.D. Ky., Mar. 27, 2020)

Our plain-English summary of Papineau v. Brake Supply Company, Inc. (U.S. District Court, Western District of Kentucky, March 27, 2020).

Jack Papineau and Holly Papineau sued four defendants, including Brake Supply Company, alleging Mr. Papineau has malignant mesothelioma from exposure to asbestos-containing brake products. Brake Supply then filed a third-party complaint against Rudd Equipment Company, which was not an original defendant. Brake Supply alleged that Rudd sold heavy equipment and parts, including brake components with friction linings that may have contained chrysotile asbestos, to Smith Coal, where Mr. Papineau worked at several mines. Brake Supply sought common law indemnity and apportionment of fault under Kentucky's K.R.S. 411.182. Rudd moved to dismiss. The court granted the motion. It held the indemnity claim failed because the complaint had no facts showing Rudd was the primary, active wrongdoer and Brake Supply only a secondary, passive one. On apportionment, the court said the statute creates no separate cause of action, but Brake Supply keeps its right to ask for an apportionment instruction at trial if the evidence supports it.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Western District of Kentucky
• Decided: March 27, 2020
• Docket: Civil Action No. 4:18-CV-00168-JHM
• Stage: Motion to dismiss
• State: Kentucky

Outcome. The court granted Rudd Equipment's motion to dismiss Brake Supply's amended third-party complaint, dismissing the common law indemnity claim for lack of facts, while noting Brake Supply keeps its right to seek an apportionment instruction at trial.

What the court held. To plead common law indemnity under Kentucky law, a party must allege facts showing the third party was the primary, active tortfeasor and it was the secondary, passive one. K.R.S. 411.182 gives no independent cause of action for apportionment, only a right to an instruction where underlying fault exists.

Issues decided: Fault, Apportionment and Settlement Credits, Trial Procedure and Discovery.

The people and their exposure

• Jack Papineau: mesothelioma

Who	Work	Where	When	Products
Jack Papineau	worked at Smith Coal	Smith Coal (Providence Mine, Southard Mine, Cypress Creek mines)		brakes, clutches and friction materials, chrysotile, friction linings sold by Rudd Equipment

The defendants

• Brake Supply Company, Inc. (supplier)
• Rudd Equipment Company (supplier)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Papineau v. Brake Supply Company, Inc. (January 30, 2020). The district court overruled Honeywell's objection and left in place the Magistrate Judge's orders compelling Honeywell to answer an interrogatory and a document request, so the Papineaus prevailed.
• Papineau v. Brake Supply Company (May 12, 2020). The court denied third-party defendant Fras-le S.A.'s motion to dismiss Brake Supply's third-party complaint without prejudice, reserving judgment on service and personal jurisdiction and ordering 120 days of limited jurisdictional discovery.
• Papineau v. Brake Supply Company (November 13, 2020). The court granted third-party defendant Fras-le North America's motion for summary judgment on Brake Supply's indemnity and apportionment claims and denied Brake Supply's motion to hold that motion in abeyance.
• Papineau v. Brake Supply Company, Inc. (April 2, 2021). The court denied the Papineaus' motion to sever or bifurcate Brake Supply's third-party claims against Fras-le and Carlisle Industrial, so all claims will be tried together.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

JACK PAPINEAU, AND HOLLY PAPINEAU, Plaintiffs,

v.

BRAKE SUPPLY COMPANY, INC., etal, Defendants.

Civil Action No. 4:18-CV-00168-JHM.

March 27, 2020.

United States District Court, W.D. Kentucky, Owensboro Division.

MEMORANDUM OPINION AND ORDER

JOSEPH H. McKINLEY, Jr., District Judge.

This matter is before the Court on Third-Party Defendant Rudd Equipment Company's Motion to Dismiss the Amended Third-Party Complaint of Defendant and Third-Party Plaintiff Brake Supply Company, Inc. [DN 189]. Fully briefed, this matter is ripe for decision. For the following reasons, Rudd Equipment's Motion to Dismiss is GRANTED.

I. BACKGROUND

Plaintiff Jack Papineau alleges that he has malignant mesothelioma from exposure to asbestos-containing brake products. [DN 1 ¶ 13]. He sued four defendants including Brake Supply; Rudd Equipment was not a named defendant. [DN 1]. Later, Brake Supply alleged common law indemnity and apportionment under K.R.S. § 411.182[1] in its Amended Third-Party Complaint against Rudd Equipment. [DN 154]. Rudd Equipment now requests that the Court dismiss Brake Supply's Amended Third-Party Complaint. [DN 189].

II. STANDARD OF REVIEW

On a motion to dismiss for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6), a court "must construe the complaint in the light most favorable to plaintiffs," League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), "accept all well-pled factual allegations as true," id., and determine whether the "complaint. . . states a plausible claim for relief," Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for its entitlement to relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when it "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts "merely consistent with a defendant's liability" or if the alleged facts do not "permit the court to infer more than the mere possibility of misconduct." Id. at 679. Instead, "a pleading must contain a `short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. at 677 (quoting FED. R. CIV. P. 8(a)(2)). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

III. DISCUSSION

A. Common Law Indemnification

Rudd Equipment argues that "Brake Supply failed to allege any facts supporting a claim for indemnity against" it. [DN 189-1 at 2]. In Kentucky a party may recover under common law indemnity in two classes of cases:

(1) Where the party claiming indemnity has not been guilty of any fault, except technically, or constructively, as where an innocent master was held to respond for the tort of his servant acting within the scope of his employment; or (2) where both parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury. Adams v. Family Dollar Stores of Ky., LP #11504, No. 3:19-CV-167-CRS, 2019 WL 6107857, at [*4] (W.D. Ky. Nov. 15, 2019) (quoting Degener v. Hall Contracting Corp., 27 S.W.3d 775, 780 (Ky. 2000)). "In interpreting this standard, the Degener court evaluated the cases before it by distinguishing between the `active wrongdoer[s]' and the parties whose liability was `premised solely upon [their] failure to prevent' the torts." Id. (citing Degener, 27 S.W.3d at 781). "In the cases cited by the Degener court, the parties who failed to prevent the harm were entitled to common law indemnity from the parties who actively caused the harm." Id. (citations omitted). As such, to state a plausible claim for common law indemnity under Kentucky law, Brake Supply must demonstrate that Rudd Equipment was the primary, active tortfeasor and that Brake Supply was the secondary, passive tortfeasor. See id.

To support its indemnity claim, Brake Supply alleges:

22. During the time period when Mr. Papineau worked at Smith Coal, Smith Coal purchased heavy

equipment and parts from Rudd Equipment's facility in Evansville, Indiana, for use in Smith Coal's

operations, including at the Providence Mine, Southard Mine, and Cypress Creek mines where Mr. Papineau worked.

23. Components purchased by Smith Coal from Rudd Equipment during the time period Jack Papineau

worked for Smith Coal included original equipment manufactured brake components, including pre-affixed friction linings.

24. In the early part of Mr. Papineau's employment with Smith Coal, friction products sold by Rudd

Equipment to Smith Coal may have contained chrysotile asbestos as a component part.

25. To the extent that Mr. Papineau was ever exposed to asbestos from friction products during his work at Smith Coal, some of that exposure was to friction products, equipment, or components sold by Rudd

Equipment to Smith Coal.

[DN 154 ¶¶ 22-25]. The Amended Third-Party Complaint is devoid of any factual allegations that support that Rudd Equipment was the primary, active tortfeasor and that Brake Supply was the secondary, passive tortfeasor. See Adams, 2019 WL 6107857, at [*4]. Thus, the common law indemnity claim is dismissed.

B. Apportionment

Rudd Equipment argues that Brake Supply's apportionment claim fails because K.R.S. § 411.182 does not provide an independent cause of action. [DN 189-1 at 2]. This Court has held that a party who files a third-party complaint "has a right to an apportionment instruction under KRS § 411.182 upon a finding `where underlying substantive fault exists, but it does not provide a substantive cause of action itself.'" Wilson v. Wal-Mart Stores E., LP, No. 4:11-CV-00148-JHM, 2013 WL 2607113, at [*3] (W.D. Ky. June 11, 2013) (quoting Hall v. Nat'l Med. Evaluations, Inc., No. 05-185-JBC, 2007 WL 1385943, at [*2] (E.D. Ky. May 8, 2007).

Brake Supply does not have a cause of action of apportionment against Rudd Equipment, but Brake Supply has asserted claims against Rudd Equipment sufficient to preserve its right to an apportionment instruction under K.R.S. § 411.182 if the evidence supports the instruction at trial. See id. (holding that "Wal-Mart does not have a `claim' of apportionment against Gossett, but Wal-Mart has preserved its right to an apportionment instruction pursuant to KRS § 411.182 if the evidence supports the instruction at trial.).

IV. CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that the Motion to Dismiss the Amended Third-Party Complaint [DN 189] against Third-Party Defendant Rudd Equipment is GRANTED.

[1] Kentucky's statute that governs the allocation of fault in tort actions.

Sources

• The opinion on Google Scholar
• Kentucky asbestos laws
• Kentucky asbestos exposure sites