United States District Court, D. Colorado
T. Varholak United States Magistrate Judge
matter comes before the Court on Defendant May Trucking
Company's Motion to Dismiss Plaintiff Second and Third
Claims for Relief [#46] (the “Motion”). The
parties have consented to proceed before the undersigned
United States Magistrate Judge for all proceedings, including
entry of a final judgment. [##43-45] This Court has carefully
considered the Motion and related briefing, the case file,
and the applicable case law, and has determined that oral
argument would not materially assist in the disposition of
the Motion. For the following reasons, the Motion is
April 3, 2015, Jody Taylor was operating a 2014 Freightliner
tractor trailer owned by Defendant May Trucking Company
(“May Trucking”). [#5 at ¶¶ 6-7] At the
time, Ms. Taylor was employed by May Trucking and working
under her scope of employment with May Trucking.
[Id. at ¶ 8] Ms. Taylor negligently merged onto
Interstate 25 causing Wesley Conda, driver of a 1990
Chevrolet pick-up truck, to lose control of his vehicle and
strike Plaintiff's vehicle. [Id. at ¶ 10]
That collision caused Plaintiff to lose control of her
vehicle. [Id. at ¶ 11] Plaintiff's vehicle
was forced under the trailer of Ms. Taylor's Freightliner
and was dragged for several hundred feet. [Id.] As a
result, Plaintiff suffered various injuries and damages.
[Id. at ¶¶ 16-19]
March 16, 2018, Plaintiff initiated this action in the Adams
County District Court. [#5] The Complaint named May Trucking
and Ms. Taylor as Defendants. [Id.] The Complaint
brought three causes of action: (1) negligence against Ms.
Taylor and vicarious liability against May Trucking, (2)
negligent hiring, retaining, and/or supervision against May
Trucking, and (3) negligent entrustment of chattel against
May Trucking. [Id. at 3-6] On April 18, 2018, the
matter was removed to this Court on the basis of diversity
jurisdiction. [#1] Due to difficulties serving Ms. Taylor
[##18, 27, 31, 34], Plaintiff dismissed Ms. Taylor as a
defendant [##39, 41].
April 25, 2018, May Trucking answered the Complaint. [#9] In
its Answer, May Trucking admits that, at the time of the
collision, Ms. Taylor was driving the Freightliner owned by
May Trucking, that May Trucking employed Ms. Taylor, and that
Ms. Taylor was acting within the scope of her employment.
[See #5 at ¶¶ 7, 8; #9 at ¶¶ 7,
8] May Trucking further admits that “if the jury
determines that [Ms.] Taylor was negligent, the principles of
vicarious liability would apply.” [#9 at ¶ 28]
12, 2019, May Trucking filed the instant Motion. [#46] May
Trucking argues that because it has admitted vicarious
liability for any negligence on the part of Ms. Taylor,
Plaintiff's second and third claims for relief, asserting
negligent hiring and negligent entrustment, are duplicative
and must be dismissed. [See generally id.] Plaintiff
has responded to the Motion [#48], and May Trucking has filed
a reply [#50].
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6), a court may dismiss
a complaint for “failure to state a claim upon which
relief can be granted.” “A motion for judgment on
the pleadings under Rule 12(c) is treated as a motion to
dismiss under Rule 12(b)(6).”Atl. Richfield Co. v.
Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th
Cir. 2000). Accordingly, in deciding both motions, the court
must “accept as true all well-pleaded factual
allegations . . . and view these allegations in the light
most favorable to the plaintiff.” Casanova v.
Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)). Nonetheless, a plaintiff may not rely on mere
labels or conclusions, “and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). Plausibility refers
“to the scope of the allegations in a complaint: if
they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting Twombly, 550
U.S. at 570). “The burden is on the plaintiff to frame
a ‘complaint with enough factual matter (taken as true)
to suggest' that he or she is entitled to relief.”
Id. (quoting Twombly, 550 U.S. at 556). The
ultimate duty of the court is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Trucking moves to dismiss Plaintiff's negligent hiring
claim (“Claim Two”) and negligent entrustment
claim (“Claim Three”), pursuant to the rule
articulated in McHaffie v. Bunch. 891 S.W.2d 822
(Mo. 1995). [#46] Under the McHaffie Rule, once an
employer admits respondeat superior liability for a
driver's negligence, it is improper to allow a plaintiff
to proceed against the employer on other theories of imputed
liability. 891 S.W.2d at 826. May Trucking argues that
because it has admitted respondeat superior liability here,
Plaintiff should not be permitted to proceed on Claims Two
and Three. [#46]
Colorado Supreme Court adopted the McHaffie Rule in
Ferrer v. Okbamicael. 390 P.3d 836 (Colo.
2017). The Ferrer Court provided several
rationales for adopting the rule. First, the Ferrer
Court explained that “where the employer has already
conceded it is subject to respondeat superior liability for
any negligence of its employee, direct negligence claims
become superfluous.” Id. at 844. “Stated
differently, both vicarious liability and direct negligence
claims are tethered to the employee's tortious
acts” and, as a result, “[o]nce the principal has
admitted its liability under a respondeat superior theory . .
. the [direct] cause of action . . . is duplicative and
unnecessary.” Id. at 845 (quotation omitted).
Second, the Ferrer Court explained that allowing
both the direct and respondeat superior causes of action to
proceed to a jury could cause the jury to assess or apportion
a principal's liability twice. Id. Finally, the
Ferrer Court expressed concern that allowing the
direct negligence claim to proceed to a jury could be
unfairly prejudicial to a defendant employee because evidence
of the employer's negligent hiring could lead to the
admission of evidence about the employee's past conduct.
Id. The Ferrer Court explicitly used
negligent hiring and negligent entrustment as examples of
improper claims once the employer admits vicarious liability.
Id. at 844, 845.
McHaffie Rule, as articulated by the Ferrer
Court, applies to Plaintiff's Second and Third claims.
May Trucking has already admitted respondeat superior
liability. [#9, ¶ 28] As a result, Claims Two and Three,
which seek to establish direct ...