United States District Court, E.D. Texas, Sherman Division
December 9, 2005.
MILDRED ROSS, as next friend of LE'SHEA KENNIMER, a minor, BRIAN KENNIMER, a minor, and CAYLA KENNIMER, a minor
KIA MOTORS CORP. and KIA MOTORS AMERICA, INC. v. TANYA KENNIMER.
The opinion of the court was delivered by: DON BUSH, Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Before the Court is Third Party Defendant Tanya Kennimer's Rule
12(b)(6) Motion to Dismiss Third Party Complaint (Docket #42).
Kia Motors Corp. and Kia Motors America, Inc. (hereafter
"Defendants") timely responded to the motion and
contemporaneously filed an Unopposed Motion for Leave to
Designate Tanya Kennimer as a Responsible Third Party, which
motion the Court granted. Having considered the motion to dismiss
and Defendants' response, the Court finds that Ms. Kennimer's
motion to dismiss should be denied.
This action arises out of an automobile accident which occurred
on August 3, 2001. Tanya Kennimer was driving a Kia Rio in Van
Alstyne, Texas and was involved in a collision with Bufford
Ragsdale, who was driving a pickup truck. John Kennimer, Tanya
Kennimer's son, was fatally injured while sitting in the rear
middle seat. His two siblings were sitting next to him, but
suffered no major physical injuries.
Plaintiffs, represented by Mildred Ross, filed this action in
the United States District Court for the Eastern District of Texas, Marshall Division, on July 28,
2004 against Defendants for negligent design, manufacture,
assembly, marketing, and testing of the vehicle in question.
Essentially, Plaintiffs alleged that the vehicle was not
crashworthy. Defendants filed a third party complaint against
Tanya Kennimer on August 25, 2004. The case was transferred to
the Sherman Division on September 30, 2005.
Ms. Kennimer never answered the third party complaint or
otherwise made an appearance while the case was pending in the
Marshall Division. However, nearly a year later, when the case
was transferred to Sherman, she filed a motion to dismiss and
answer in this court. Ms. Kennimer requests dismissal on the
following three grounds: (1) the statute of limitations bars any
action against her; (2) she is a settling person; and (3) since
Plaintiffs' underlying claim is a products liability
"crashworthiness" claim, any alleged negligence on the part of
Ms. Kennimer is neither relevant nor admissible. The Court will
address each ground for dismissal in turn.
Prior decisions of both the United States Supreme Court and the
Fifth Circuit Court of Appeals have made it clear that motions to
dismiss for failure to state a claim upon which relief can be
granted should not be granted lightly. For a complaint to be
dismissed for failure to state a claim, it must appear "beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957); Reeves v. City of Jackson,
Mississippi, 532 F.2d 491 (5th Cir. 1976).
Absent a claim which is obviously insufficient, a court should
not grant a Rule 12(b)(6) motion to dismiss, thereby denying the
plaintiff an opportunity to develop facts to support his
complaint. Moreover, sufficient procedures are available to a
defendant to seek summary disposition of a lawsuit after a
plaintiff has been afforded some opportunity to develop facts to
support his complaint. Reeves, 532 F.2d at 494.
Ms. Kennimer first claims that dismissal of the third party
claim is appropriate because the statute of limitations has run.
She cites Texas Civil Practice and Remedies Code § 16.003 which
states: "A person must bring a suit no later than two years after
the day the cause of action accrues in an action for injury
resulting in death. The cause of action accrues on the death of
the injured person." Ms. Kennimer points out that her son, John
Kennimer, died on August 3, 2001, and the third party complaint
was not filed until August 25, 2004. The underlying lawsuit was
not even filed until July 28, 2004, nearly three years beyond the
date of the accident. Ms. Kennimer further alleges that the
stature of limitations has run because she was never properly
served with the third party complaint.
Although no return of service appears on the Court's docket,
Defendant has submitted a signed return of service indicating
that Ms. Kennimer was personally served with the third party
complaint on October 20, 2004. Ms. Kennimer has voiced no
objection to the return of service submitted by Defendants. She
only mentions service once in her motion to dismiss when she
states "Proper service of the complaint upon Tanya Kennimer was
never achieved by Kia Motors America, Inc." (Pl. M. Dis. at ¶ 2).
Without more elaboration, the Court finds the evidence submitted
by Defendants sufficient to establish proper service of process
upon Ms. Kennimer.*fn1
Moreover, Ms. Kennimer's limitations argument fails because she
has overlooked Texas Civil Practice and Remedies Code § 16.001
which states: (a) For purposes of this subchapter, a person is
under a legal disability if the person is:
(1) younger than 18 years of age, regardless of
whether the person is married. . . .
(b) If a person entitled to bring a personal action
is under a legal disability when the cause of action
accrues, the time of the disability is not included
in the limitations period.
All of the Plaintiffs are minors, and the statute of limitation
is therefore tolled on their behalf. See Hopkins v. Spring
Indep. Sch. Dist., 706 S.W.2d 325, 326 (Tex.App.-Houston
[14th Dist.], writ granted) (statue of limitations is tolled
on behalf of minors, and suit brought by "Next Friend" in no way
changes minors' status for purpose of tolling of limitations
period). Third party practice permits a defendant to assert
claims against any person who may be liable for all or part of
the underlying damages. See FED. R. CIV. P. 14(a). Furthermore,
Ms. Kennimer is a contribution Defendant under Texas Civil
Practice and Remedies Code § 33.016(a). Therefore, even though
Plaintiffs have asserted no claims against her, Defendants are
entitled to seek contribution from Ms. Kennimer in this action.
TEX. CIV. PRAC. & REM. CODE § 33.016(b). The Court therefore
denies Ms. Kennimer's motion to dismiss on limitations grounds.
Ms. Kennimer next argues that dismissal is appropriate because
she is a settling person under Texas Civil Practice and Remedies
Code § 33.011(5). Under Texas Civil Practice and Remedies Code §
33.016(b) "Each liable defendant is entitled to contribution from
each person who is not a settling person and who is liable to
the claimant for a percentage of the responsibility but from whom
claimant seeks no relief at the time of submission." Ms. Kennimer
has attached a settlement agreement between herself and
Plaintiffs, executed November 3, 2004, to the motion. She argues
that she is therefore a "settling person" and cannot be held
liable for contribution. Defendants concede that, if Ms. Kennimer is, in fact, a
"settling person," Defendants will dismiss their claims against
her. However, Defendants object that Ms. Kennimer has failed to
establish that she is a settling person. While she has produced a
settlement agreement, she has produced no proof that she actually
paid the consideration required to render the agreement
effective. The Settlement Agreement states:
1. In consideration of the total sum of $1,000.00
(One Thousand and No/100 Dollars) from Responsible
Third Party Defendant, the receipt and sufficiency of
which is hereby acknowledged by Plaintiffs, and in
consideration of the mutual agreements, conditions,
representations, warranties, recitals, covenants and
statements of intention contained herein, Plaintiffs
Mildred Ross, as next friend of Le'Shea Kennimer,
Brian Kennimer and Cayla Kennimer hereby accepts the
above referenced payment in full settlement,
compromise and release of all claims arising out of
or in connection with the Lawsuit, pursuant to the
Settlement Agreement, against Responsible Third Party
Defendant, Tanya Kennimer.
2. Responsible Third Party Defendant shall tender
such sum in the following manner: on the Effective
Date of this Agreement, Responsible Third Party
Defendant shall deliver a check for the total amount
of settlement sum, payable to Plaintiff's attorney,
(Sett. Agr. at pg. 5). The Agreement goes on to state that the
effective date is November 3, 2004. (Sett. Agr. at pg. 9).
Defendants object that there is no evidence that Ms. Kennimer
ever tendered the required consideration, and therefore no
evidence that the agreement is a valid settlement. In her
deposition, Mildred Ross, the children's representative, states
that she has never accepted money on behalf of the children from
Ms. Kennimer or settled the children's claims with Ms. Kennimer.
(Ross Dep. at pg. 68). Ms. Ross acknowledged that she and Ms.
Kennimer had signed settlement papers, but she specifically stated that she had never received $1,000.00 on
behalf of the children from Ms. Kennimer. (Ross. Dep. at pg. 69).
When Ms. Kennimer was deposed, she stated that she did not recall
tendering any payment to Plaintiffs, but that she understood her
lawyers would keep one thousand dollars, apparently of monies due
to her, and give it to Plaintiffs. (Kennimer Dep. at pg. 51).
Defendants state that they have requested evidence that the
payment was tendered through discovery and by subpoena, but have
The Court is not presently satisfied that Ms. Kennimer is a
settling person. "Settling person" is defined as "a person who
has, at any time, paid or promised to pay money or anything of
monetary value to a claimant in consideration of potential
liability with respect to the personal injury, property damage,
death, or other harm for which recovery of damages is sought."
TEX. CIV. PRAC. & REM. CODE § 33.011(5). Per the terms of the
agreement, the money was to be tendered on the effective date. If
the money has not yet been tendered, the agreement is not yet
effective and Ms. Kennimer cannot be held a settling person, even
though, in a sense, she has promised to pay the $1000.00. The
Court will therefore not presently grant dismissal on these
grounds. However, if Defendants discover at some point in the
course of this litigation that Ms. Kennimer is, in fact, a
settling person, Defendants are directed to promptly dismiss Ms.
Kennimer from this action.*fn2 Likewise, Ms. Kennimer may
reurge dismissal if she is able to establish, to the satisfaction
of all parties, that she is a settling person.
Ms. Kennimer finally argues that dismissal is appropriate
because the complaint alleges that Defendants' defective product
resulted in damages that otherwise would not have occurred. There is no allegation that the product caused the accident at issue.
Ms. Kennimer contends that the allegation that the vehicle
involved was not "crashworthy" stands separate and apart from any
claims that any person's negligence caused the accident at issue.
As no claims have been brought regarding the cause of the
accident, Ms. Kennimer argues that any evidence of her own
negligence is irrelevant.
Texas Civil Practice and Remedies Code Section 33.003(a)
(a) The trier of fact, as to each cause of action
asserted, shall determine the percentage of
responsibility, stated in whole numbers, for the
following persons with respect to each person's
causing or contributing to cause in any way the harm
for which recovery of damages is sought, whether by
negligent act or omission, by any defective or
unreasonably dangerous product, by other conduct or
activity that violates an applicable legal standard,
or by any combination of these:
(1) each claimant;
(2) each defendant;
(3) each settling person; and
(4) each responsible third party who has been
designated under Section 33.004.
In Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 418 (Tex.
1984), the Texas Supreme Court held that, in products liability
cases subsequent to July 13, 1983, defendants may obtain jury
allocations of plaintiffs' damages according to the plaintiffs',
defendants' and other third parties' respective percentages of
causation. In Duncan, a man died in an airplane crash and his
estate sued Cessna for faultily manufactured seats which, the
estate claimed, caused the husband's death. When Cessna
counterclaimed against the pilot of the plane, the Supreme Court
Comparative causation is especially appropriate in
crashworthiness cases where the product defect causes
or enhances injuries but does not cause the accident.
The conduct which actually causes the accident, on
the other hand, would not cause the same degree of
harm if there were no product defect. The jury is
asked to apportion responsibility among all whose
action[s] or products combined to cause the entirety
of Plaintiff's injuries. Duncan, 665 S.W.2d at 428. See also, Gen. Motors
Corp. v. Castaneda, 980 S.W.2d 777, 780-81
(Tex.App.-San Antonio 1998, pet. denied) (holding that
in crashworthiness cases, damages shall be
apportioned among all whose actions combined to cause
the entirety of Plaintiff's injuries). The Court
finds that, under Texas law, Defendants are entitled
to seek contribution from Ms. Kennimer.
Based upon the foregoing, the Court finds that Ms. Kennimer's
Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
should be DENIED.
Within ten (10) days after receipt of the magistrate judge's
report, any party may serve and file written objections to the
findings and recommendations of the magistrate judge.
28 U.S.C.A. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and
recommendations contained in this report within ten days after
service shall bar an aggrieved party from de novo review by the
district court of the proposed findings and recommendations and
from appellate review of factual findings accepted or adopted by
the district court except on grounds of plain error or manifest
injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez
v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).
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