Elizabeth K. Dillon, United States District Judge.
Plaintiff Bradley McKeown, as administrator and personal representative of the estate of Katherine McKeown, filed this action against defendants Khalil Rahim, Troy Livingston, V. Jones Trucking, LLC (VJT), and James Hardie Building Products, Inc. (Hardie), seeking damages for a vehicle collision in which a tractor-trailer driven by Rahim and owned by Livingston struck the McKeowns' vehicle, killing Bradley's wife Katherine McKeown. VJT and Hardie each filed motions to dismiss McKeown's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). After the court held a hearing on defendants' motions, McKeown filed a motion to file a third amended complaint.
In August 2017, Bradley and Katherine McKeown were traveling on I-81 in Virginia when a tractor-trailer driven by Rahim and owned by Livingston rear ended their vehicle. The collision caused the McKeown's vehicle to spin sideways and crash into another vehicle. Katherine
McKeown alleges that Rahim acted negligently by failing to maintain control of his tractor-trailer, driving too fast, and otherwise operating his vehicle in an unsafe manner. According to McKeown, 60% of the tractor-trailer's brakes and six of ten brake chambers on the truck and trailer were not in working order, which contributed to the crash. (Id. ¶¶ 36-40.)
McKeown further alleges that VJT—a trucking company engaged in freight shipping and hauling—allowed Rahim and Livingston to transport loads under its USDOT number and federal operating authority, which were listed on the side of the truck at the time of the accident. (Id. ¶¶ 10, 16, 27.) On the date of the crash, Rahim was transporting a load under VJT's operating authority for Hardie, an entity engaged in manufacturing, distributing, and selling building products. (Id. ¶¶ 16, 24.) Accordingly, McKeown alleges that Rahim was acting within the scope of his employment with Livingston, VJT, and Hardie. (Id. ¶ 19.)
Based on the above, McKeown asserts the following claims: direct negligence against Rahim, Livingston, and VJT (Count One); vicarious liability against Hardie as Rahim's statutory employer under the Federal Motor Carrier Safety Regulations (FMCSRs) (Count Two); vicarious liability against Livingston and VJT (Count Three); negligent entrustment against Livingston and VJT (Count Four); negligent undertaking and assumption of duty against Hardie (Count Five); negligent hiring of an independent contractor against Hardie (Count Six); negligence and negligence per se against VJT for aiding and abetting violations of the FMCSRs (Count Seven); and negligence per se against all defendants (Count Eight).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff's allegations must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard "requires the plaintiff to articulate facts, when accepted as true, that `show' that the plaintiff has stated a claim entitling him to relief, i.e., the `plausibility of entitlement to relief.'" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). The plausibility standard requires more than "a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
In determining whether the plaintiff has met this plausibility standard, the court must accept as true all well-pleaded facts in the complaint. Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Further, it must "draw[ ] all reasonable factual inferences from those facts in the plaintiff's favor," Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), but it "need not accept legal conclusions couched as facts or `unwanted inferences, unreasonable conclusions, or arguments,'" Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).
McKeown's second amended complaint includes claims against VJT for negligence, vicarious liability, negligent entrustment, negligence and negligence per se for aiding and abetting violations of the FMCSRs, and negligence per se. The basis of these claims appears to be the fact that VJT allowed Rahim to operate the tractor-trailer at issue using VJT's operating authority.
To establish a claim of negligence, McKeown must allege the elements of duty, breach, injury, and cause. Bartlett v. Roberts Recapping, Inc., 207 Va. 789, 153 S.E.2d 193, 196 (1967). VJT argues that McKeown has not alleged and cannot allege that VJT owed McKeown a duty. Even if VJT owed McKeown a duty, VJT contends that McKeown has failed to allege that its actions were the proximate cause of the accident and any injuries.
Because "[t]he `finding of a legal duty' is a `prerequisite to a finding of negligence,'" there can be no cause of action for negligence without such a duty. Quisenberry v. Huntington Ingalls, Inc., 296 Va. 233, 818 S.E.2d 805, 809 (2018) (quoting Jeld-Wen, Inc. v. Gamble, 256 Va. 144, 501 S.E.2d 393, 397 (1998)). Although not expressly alleged in his second amended complaint, McKeown asserts that VJT owed a general duty of reasonable care under Virginia's common law. See id. ("General negligence principles require a person to exercise due care to avoid injuring others." (quoting RGR, LLC v. Settle, 288 Va. 260, 764 S.E.2d 8, 16 (2014))). Because part of VJT's business involved sharing its operating authority so that Livingston and Rahim could engage in interstate transportation, McKeown asserts that it was foreseeable that VJT's failure to exercise care in choosing to share its authority with Rahim and Livingston could place other drivers in jeopardy.
McKeown is correct that the Supreme Court of Virginia has recently reaffirmed a broader general duty to others in RGR and Quisenberry. See Friend, 1 Personal Injury Law in Virginia § 2.1 (2019). As the court recently stated, the "`broad common law maxim' sic utere tuo ut alienum non laedas requires that `one must so use his own rights as not to infringe upon the rights of another.'" RGR, 764 S.E.2d at 16 (quoting Cline v. Dunlora S., 284 Va. 102, 726 S.E.2d 14, 17 (2012)). "This duty is not abstract: a specific course of conduct gives rise to a specific duty extending to specific persons." Quisenberry, 818 S.E.2d at 810. Accordingly, the general duty is owed "to those within reach of a defendant's conduct." Id. (quoting RGR, 764 S.E.2d at 17).
Even given this broader general duty, however, McKeown has failed to allege how it applies to VJT's sharing of operating authority. McKeown's theory appears to be that VJT allowed Livingston and Rahim to use its operating authority to transport loads and, in doing so, acted negligently. He essentially alleges that VJT had a duty not to share its operating authority, but he has failed to identify any Virginia authority recognizing such a duty. Likewise, he has not identified how sharing operating authority, without more, "create[s] a recognizable risk of harm" to others, such that the general duty recognized in Virginia would apply here. Quisenberry, 818 S.E.2d at 811 (quoting RGR, 764 S.E.2d at 19).
Because McKeown has not sufficiently alleged that VJT owed McKeown a duty,
VJT argues that McKeown's claim of negligence per se suffers the same deficiencies as his negligence claim in Count One. In Virginia,
Schlimmer v. Poverty Hunt Club, 268 Va. 74, 597 S.E.2d 43, 46 (2004).
McKeown alleges that VJT was negligent per se by violating § 396.3 of the FMCSRs. As relevant here, that regulation states: "Every motor carrier ... must systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles and intermodal equipment subject to its control." 49 C.F.R. § 396.3(a). It then specifies that "[p]arts and accessories shall be in safe and proper operating condition at all times," including any "parts and accessories which may affect safety of operation." Id.
The court believes this is the type of regulation that may form the basis of a negligence per se claim in Virginia. A requirement that motor carriers keep their vehicles in safe working order, specifically emphasizing the maintenance of parts that affect the safety of operation, suggests that this regulation was intended to protect members of the driving public, including the McKeowns, from unsafe commercial vehicles like Livingston's. At this stage, McKeown has plausibly alleged that VJT, as a motor carrier, failed "to properly inspect, repair, and maintain the brakes on the tractor-trailer," (Second Am. Compl. ¶ 110) and that the brakes being "out of adjustment, out of service, and not in working order," was a factor in the collision (Id. ¶ 40).
In Count Seven, McKeown asserts claims for negligence or negligence per se against VJT for aiding and abetting violations of the FMCSRs. He states that VJT had a "duty to comply with the requirements of the [FMCSRs], including § 390.13," which prohibits aiding or abetting violations of the FMCSRs. (Id. ¶ 101.) But, "the violation of a statute does not, by that very fact alone, constitute actionable negligence or make the guilty party negligent per se." Williamson v. Old Brogue, Inc., 232 Va. 350, 350 S.E.2d 621, 624 (1986). Moreover, not all statutes or regulations that have the effect of protecting the public are public safety measures that, when violated, may provide a basis for negligence per se.
For example, in Williamson v. Old Brogue, Inc., the Supreme Court of Virginia held that a provision of the Virginia Code "directed to promotion of sobriety and public morality" was not enacted for public safety. 350 S.E.2d at 625. Even though the statute was "enacted pursuant to the police power of the State, `in the interest of the safety, health, and well-being of the local communities' ... [t]he danger confronted by the enactment was the unrestrained sale of intoxicants with the resulting threat to public sensibilities." Id. The court held that it was merely a licensing statute that could not provide the basis of liability for negligence per se. Id. ("While improved public safety and prevention of personal injury were incidental benefits flowing from the Act, public sobriety and individual moderation were its plain goals."); see also Conway v. Lone Star Transp., LLC, No. 19-CV-0658-CVE-FHM, 2020 WL 609750, at *4 (N.D. Okla. Feb. 7, 2020) ("[C]ertain aspects of the FMCSR are not aimed at protecting the driving public, and courts have considered on a case-by-case basis whether the specific regulation can support a negligence per se claim.").
The court cannot say that § 390.13, which addresses only aiding and abetting violations of the FMCSRs, was enacted for public safety. Although some of the FMCSRs undoubtedly seek to protect the public, this specific regulation is intended only to promote compliance with the regulatory scheme.
McKeown next asserts that VJT was a "statutory employer" of Livingston and Rahim pursuant to the FMCSRs. Courts have addressed at least two different theories
To the extent McKeown argues that § 390.5 of the FMCSRs creates an employment relationship, the court disagrees. Section 390.5 defines "employee" and "employer" as follows:
49 C.F.R. § 390.05 (emphasis added).
In White v. Date Trucking, the District of Maryland granted a motion to establish an employee relationship pursuant to the FMCSRs' definitions of employee and employer. 2018 WL 2462921, at *6. However, the court relied on Beavers to note that its decision to grant the motion was "a hollow victory. This is because Grantland's employee status under the FMCSR has no bearing on whether Date Trucking is vicariously liable for Grantland's alleged negligence." Id. The court reasoned that although there was an employment relationship as defined by the regulations, those definitions did not supplant the common-law employment relationship required to establish vicarious liability under state tort law. This court agrees that Virginia's common law, and not the definitions of § 390.5, control the court's vicarious-liability analysis.
But McKeown primarily argues that the principle of statutory employment under the FMCSRs came about based on the responsibility and control regulations. A provision of those regulations requires motor carriers using equipment they do not own to enter written leases of the equipment granting them "exclusive possession, control, and use of the equipment for the duration of the lease."
McKeown suggests that the responsibility and control regulations effectively preempt common law and created an irrebuttable presumption of agency. He is correct that several courts prior to 1992 accepted and applied this theory. For example, in Ryder Truck Rental Co., Inc. v. UTF Carriers, Inc., 719 F.Supp. 455 (W.D. Va. 1989), this court noted that "[i]n 1956, Congress amended the Interstate Common Carrier Act to require motor carriers to be fully responsible for the operation of vehicles certified to them in order to protect the public from certain abusive conduct which had resulted from the trucking industry's frequent use of leased or borrowed vehicles." Id. at 457. The Fourth Circuit also commented that "[t]he statute and regulatory pattern clearly eliminates the independent contractor concept from such lease arrangements and casts upon [the lessee-carrier] full responsibility for the negligence of [the lessor-contractor] as driver of the leased equipment." Proctor v. Colonial Refrigerated Transp., Inc., 494 F.2d 89, 92 (4th Cir. 1974). Thus, for a while, courts applied these regulations as though they created strict liability for lessees.
When those regulations were amended in 1992, however, courts split on whether the FMCSRs still preempted state tort law. Even the ICC indicated that the original intent of the regulations was not to preempt state law:
Petition to Amend Lease & Interchange of Vehicle Regulations, 8 I.C.C.2d 669, 671 (1992). The amended regulation reflected these changes by stating:
49 C.F.R. § 376.12(c)(4).
Since the 1992 amendment, courts have taken three different approaches to the statutory-employment analysis:
Edwards v. McElliotts Trucking, LLC, 268 F.Supp.3d 867, 878 (S.D.W. Va. 2017) (citations omitted). McKeown has cited to a number of pre-1992 cases from the Fourth Circuit and courts within the Fourth Circuit, see, e.g., Proctor v. Colonial Refrigerated Transp., Inc., 494 F.2d 89 (4th Cir. 1974); Ryder Truck Rental Co., Inc. v. UTF Carriers, Inc., 719 F.Supp. 455 (W.D. Va. 1989), and several post-1992 out-of-circuit cases that appear to have continued the pre-amendment approach to liability, see, e.g., Puga v. About Tyme Transp., Inc., 227 F.Supp.3d 760 (S.D. Tex. 2017). However, after 1992, courts within the Fourth Circuit have largely disagreed with the pre-1992 approach and placed emphasis on the amended language of § 376.12(c)(4).
For example, in Lester v. SMC Transport, LLC, the court rejected the plaintiff's theory that the regulations "cast upon motor carriers full responsibility for the negligence of drivers." Lester v. SMC Transport, LLC, No. 7:15CV00665, 2016 WL 4595696, at *3 (W.D. Va. Sept. 2, 2016) (quoting Phillips v. Dallas Carrier Corp., 766 F.Supp. 416, 418-19 (M.D.N.C. 1991)). It recited § 376.12(c)(4) before stating that "[e]ven before the amendments, the ICC had stated that it `did not intend that its leasing regulations would supersede otherwise applicable principles of State tort, contract, and agency law and create carrier liability where none would otherwise exist.'" Id. (quoting Lease & Interchange of Vehicles (Identification Devices), 3 I.C.C.2d 92, 93 (1986)).
Similarly, in Penn v. Virginia International Terminals, Inc., 819 F.Supp. 514 (E.D. Va. 1993), the court rejected pre-amendment case law, stating that those cases
Id. at 523. The court then continued to evaluate whether the relationship at issue was an employee-employer relationship under Virginia common law. Penn involved a worker's compensation issue, but its reasoning is helpful here.
Based on existing case law in Virginia, there is at least a consensus that Virginia would not recognize the irrebuttable presumption of employment applied before the 1992 amendment. However, neither Penn nor Lester discuss whether the responsibility and control regulations should result in a rebuttable presumption of employment or whether the plain language of § 376.12(c)(4) mandates that courts rely only on state-law principles.
In Edwards v. McElliotts Trucking, the Southern District of West Virginia applied a rebuttable presumption of employment. 268 F. Supp. 3d at 878. It reasoned that acknowledging a rebuttable presumption would "avoid[ ] the fundamental problem with each of the other two interpretations —disregard of either Subsection (c)(1) or (c)(4)." Edwards, 268 F. Supp. 3d at 879. It stated that an irrebuttable presumption ignores subsection (c)(4), while resort to common law effectively "wish[es]
This court agrees with Edwards that "[c]ourts that have continued to hold that the control regulation creates an irrebuttable employment relationship read Subsection (c)(4) out of the ICC regulations and ignore the ICC's plainly stated intent in its guidance documents." Id. But it disagrees with the Edwards court's conclusion that the regulations create a rebuttable presumption of agency.
The reasoning employed in White with regard to statutory employment under § 390.5 is helpful here. In White, the court observed that no provision of the FMCSRs suggests that the regulations are intended to preempt state common law with regard to vicarious liability. In fact, the ICC expressly stated that it did not intend § 376.12 to have such an effect. 2018 WL 2462921, at *4. Additionally, the FMCSRs create an enforcement mechanism for the Federal Motor Carrier Safety Administration (FMCSA) apart from state law. See 49 C.F.R. § 390.37 ("Any person who violates the rules set forth in this subchapter ... may be subject to civil or criminal penalties."); see also White, 2018 WL 2462921, at *5. Thus, subsection (c)(1) shifts the burden of complying with the FMCSRs, and any resulting civil or criminal liability under § 390.37, to the lessee. Relying on common-law to determine tort liability therefore does not eliminate the effect of that provision.
This court agrees with the federal courts in Virginia that have already addressed this issue and therefore finds that § 376.12 is not intended to "supersede otherwise applicable principles of State tort, contract, and agency law and create carrier liability where non would otherwise exist." Lester, 2016 WL 4595696, at *3. To hold otherwise would be "a misinterpretation of the regulation, especially with the hindsight provided by the 1992 amendment." Penn, 819 F. Supp. at 523; see also Jett v. Van Eerden Trucking Co., Inc., No. CIV-10-1073-HE, 2012 WL 37504, at *4 (W.D. Okla. Jan. 9, 2012) ("[T]he ICC clarified that the control regulations were not intended to create a federal theory of liability supplanting otherwise applicable state law concepts of agency, independent contractor, and the like. There is no apparent basis for ignoring, or reaching a conclusion different from, the agency's statement and clarification."). If McKeown wants to hold VJT vicariously liable for Livingston's or Rahim's actions, he must rely on state-law principles.
To state a claim for negligent entrustment of property,
In his second amended complaint, McKeown alleges that VJT "had a duty to exercise reasonable care—including making sure there was insurance coverage for the driver and vehicle and that Livingston and Rahim were competent, fit and operated safely—before allowing Livingston or Rahim to use its USDOT number and federal operating authority." (Second Am. Compl. ¶ 76.) He then summarily states that VJT "failed in the above-mentioned duties and [was] therefore negligent," and that VJT's negligence "was a direct and proximate cause of the Crash." (Id. ¶¶ 77-78.) Later in his complaint, under different claims, McKeown also alleges that "there were red flags" about Livingston and Rahim (id. ¶ 93), and that neither Livingston nor Rahim had their own operating authority or insurance (id. ¶ 100).
Even if VJT knew that Rahim and Livingston lacked insurance and operating authority, that is insufficient to hold VJT liable for negligent entrustment. For one, neither indicates that Rahim or Livingston suffered a "physical or mental defect" like vision problems, Denby, 188 S.E.2d 226, or a reputation for drinking, Crowell v. Duncan, 145 Va. 489, 134 S.E. 576 (1926),
McKeown's allegations also do not permit the court to reach an inference that VJT's entrustment was the proximate cause of the accident. With regard to the lack of insurance, this court rejected a similar argument in Lester, 2016 WL 4595696, at *7 (finding that a lack of insurance could not have caused an accident); see supra n.4. The Supreme Court of Virginia has also found that the lack of a driver's license is insufficient to establish cause for a negligent entrustment claim. Laughlin v. Rose, 200 Va. 127, 104 S.E.2d 782, 786-87 (1958) ("The lack of a driver's license did not proximately cause or contribute to the collision. Nor would it have been avoided had she had a license."); see also Duncan v. Hixon, 223 Va. 373, 288 S.E.2d 494, 495 (1982) ("In a majority of accident cases, the violation of a licensing statute by a driver is not held relevant to the determination of fault."). Instead, Virginia allows the lack of a license to form the basis of a negligent entrustment claim only where the defect that prevented the entrustee from obtaining a license is the cause of the injury. Hack, 404 S.E.2d at 43. McKeown has not alleged why Rahim and Livingston did not obtain operating authority or insurance.
Based on the foregoing, the court will grant VJT's motion to dismiss as to McKeown's claims against VJT for negligence, vicarious liability as a statutory employer, negligent entrustment, and negligence or negligence per se by aiding and abetting violations of the FMCSRs. McKeown adequately stated a claim against VJT for negligence per se.
In the second amended complaint, McKeown alleges that Hardie "undertook and assumed the non-delegable duty to provide reasonably safe transport of this
Virginia has adopted the common-law principle of assumption of duty through its application of §§ 323 and 324A of the Restatement on Torts. See Burns v. Gagnon, 283 Va. 657, 727 S.E.2d 634, 643 (2012); Kellermann v. McDonough, 278 Va. 478, 684 S.E.2d 786, 791 (Va. 2009). Pursuant to that principle, "one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Kellermann, 684 S.E.2d at 791. Specifically, McKeown appears to proceed under § 324A of the Restatement, which governs liability to third persons, Burns, 727 S.E.2d at 643-44, and provides:
Restatement (Second) of Torts § 324A.
The threshold question is therefore whether Hardie ever undertook to assume a duty to provide safe transport of its load. The Supreme Court of Virginia has acknowledged that a tort duty may be either expressly or impliedly assumed.
Count Five of McKeown's complaint fails at this first step of the analysis. In his second amended complaint, McKeown makes conclusory statements that Hardie assumed a duty to transport the load safely. He also asserts that Hardie retained control over the load and that
Likewise, McKeown's proposed third amended complaint does not state a claim by adding the allegation that Hardie's rate confirmation sheet "stated that the driver must adhere to the James Hardie shipping department's safety policies and loading procedures." (Dkt. No. 64-2, ¶ 110.) Although this may support McKeown's claim for vicarious liability by indicating that Hardie exercised "control" over its codefendants, it is insufficient to state a claim for assumption of duty. See Carter v. Am. Oil Co., 139 F.3d 1158, 1163 (7th Cir. 1998) (finding that the defendant requiring its independent contractors to create and comply with safety rules does not establish a reasonable inference that the defendant assumed a duty); Musgrave v. Tenn. Valley Auth., 391 F.Supp. 1330, 1332 (N.D. Ala. 1975) (stating that a contract requiring a contractor's adherence with specific safety programs did "not indicate that the T.V.A. intended to render safety inspection services for the contractor nor to assume any duty to insure that the required safety procedures were followed").
Accordingly, the court finds that McKeown has failed to allege that Hardie assumed a duty to provide safe transport of its goods and will therefore dismiss Count Five of the second amended complaint. Furthermore, because McKeown's proposed third amended complaint also fails to state a claim for assumption of duty, the court finds that the proposed amendment would be futile and will deny McKeown's motion for leave to amend as to this count.
Hardie next argues that McKeown has failed to state a claim for negligent hiring. "[N]egligent hiring `is based on the principle that one who conducts an activity through employees is subject to liability for harm resulting from the employer's conduct if the employer is negligent in the hiring of an improper person in work involving an unreasonable risk of harm to others.'" Interim Personnel of Central Va., Inc. v. Messer, 263 Va. 435, 559 S.E.2d 704, 707 (2002) (quoting Se. Apartments Mgmt. v. Jackman, 257 Va. 256, 513 S.E.2d 395, 397 (1999)). "Liability for negligent hiring is based upon an employer's failure to exercise reasonable care in placing an individual with known propensities, or propensities that should have been discovered by reasonable investigation, in an employment position in which, due to the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others." Id. A claim for negligent hiring therefore requires "(1) physical harm to a third party, (2) caused by failure to exercise reasonable care to employ a competent and careful contractor, (3) to work which involves risk of physical harm unless it is skillfully and carefully done."
Hardie points out that McKeown's second amended complaint contains little to no facts indicating that Hardie should have known VJT, Livingston, or Rahim were incompetent. In fact, the second amended complaint merely alleges that Hardie failed to perform a sufficient investigation into its codefendants and that had Hardie conducted such an investigation, it would have discovered "red flags" about the "incompetent, unfit, and inexperienced brokers, contractors, or sub-haulers" and the tractor-trailer. (Second Am. Compl. ¶¶ 92-93.) At the hearing, McKeown further stated that the lack of operating authority and insurance further indicate that Hardie's codefendants failed to comply with the FMCSRs. But McKeown does not specify what "red flags" would have been found or how those "red flags" indicate either that VJT, Rahim, and Livingston were unfit or that the "red flags" were the proximate cause of the accident. As discussed above, the lack of operating authority or insurance alone do not mean that VJT, Rahim, and Livingston were not careful or competent contractors. See, e.g., Laughlin, 104 S.E.2d at 786-87 ("[T]he failure of a competent driver to obtain a chauffeur's license `could not by any possibility have contributed proximately to the happening' of a collision in which he was involved." (quoting S. Railway Co. v. Vaughan's Adm'r, 118 Va. 692, 88 S.E. 305, 308 (1916))).
By contrast, courts have allowed negligent hiring claims to survive when complaints allege facts about the employee or independent contractor that indicate they had a history of unsafe driving or safety violations. For example, in Jones v. D'Souza, the plaintiff alleged, among other things, that the independent contractor "had been assigned a conditional or unsatisfactory safety rating by the [FMCSA]." No. 7:06CV00547, 2007 WL 2688332, at *5, 2007 U.S. Dist. LEXIS 66993, at *15 (W.D. Va. Sept. 11, 2007). Likewise, in Turner, the plaintiff pointed to data and rankings from the FMCSA's website indicating that the independent contractor had some of the worst ratings among drivers and received several violations. 2016 WL 1559176, at *10. In both cases, the plaintiffs relied on allegations that identified specific "red flags" about the hired parties other than or in addition to mere inexperience and conclusory statements.
Based on the dearth of specific allegations in McKeown's second amended complaint, the court finds that McKeown has failed to state a claim for negligent hiring.
However, in his proposed third amended complaint, McKeown adds allegations that VJT had a "history of safety violations" and that the FMCSA issued only conditional authority to transport loads—a fact that would plausibly prompt a reasonable person to investigate further. (Dkt. No. 64-2 ¶ 136.) See also Jones, 558 F. Supp. 2d at 643 ("A conditional rating indicates that the FMCSA considers that the carrier does not have adequate safety management controls in place."). Thus, it is plausible that a reasonable person in Hardie's position would have performed a more in-depth investigation, discovered the safety concerns surrounding VJT, and avoided the accident by refusing to hire VJT and, consequently, Rahim and Livingston.
"Under Federal Rule of Civil Procedure 15(a), leave to amend a pleading `shall be freely given when justice so requires.'" Edwards, 178 F.3d at 242 (quoting Fed. R. Civ. P. 15(a)). In fact, "leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there as been bad faith on the part of the moving party, or the amendment would be futile." Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). "[D]elay alone is not sufficient reason to deny leave to amend." Id.
McKeown proposes to amend his complaint both to bolster his existing claims with new allegations and to assert a new claim for vicarious liability. As to his proposed amendments to existing claims, VJT argues that McKeown's amendment is futile. An amendment may be futile when the "proposed amendments could not withstand a motion to dismiss." Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995). As discussed throughout the court's analysis of the motions to dismiss, above, McKeown's new allegations lend support to several of McKeown's claims, but do not save others. Accordingly, the court will grant McKeown leave to amend with regard to his common law vicarious liability and negligence per se claims against VJT and his negligent hiring claim against Hardie. McKeown's motion will be denied as to the remainder of the claims he asserted in his second amended complaint.
As for McKeown's newly asserted claim against Livingston and VJT for vicarious liability on a joint venture theory, the court will grant the motion for leave to amend. In a successful joint venture claim, "[t]he negligence of one participant in a joint enterprise is imputed to all participants." Alban Tractor Co. v. Sheffield, 220 Va. 861, 263 S.E.2d 67, 68 (1980). "To constitute a joint enterprise within the meaning of the law, the parties must have a community of interest in the object and purpose of the undertaking, and an equal right to direct and govern the movements and conduct of each other in respect thereto." Id. (quoting Miller v. Query, 201 Va. 193, 110 S.E.2d 198, 201 (1959)).
VJT argues both that amendment to include this claim would be both futile and unduly prejudicial. Specifically, it asserts that amendment would be futile because it fails for the same reasons as McKeown's negligence claims above—the fact that VJT did not owe a duty to McKeown. But this argument ignores the purpose of the joint venture theory, which would allow McKeown to recover from VJT for Livingston's negligence.
The court also disagrees with VJT's argument that it is unduly prejudiced by the amendment. McKeown's joint venture claim largely incorporates the same issues as the rest of the litigation such that it will not result in a "more complicated and lengthy trial" and is not proposed so late that VJT would be required to undertake significant eleventh-hour discovery or preparation. See Smith v. Angelone, 111 F.3d 1126, 1134 (4th Cir. 1997) (noting that the timing of the proposed amendment is a significant factor) (quoting 4 Charles A. Wright et al., Federal Practice and Procedure § 1487, at 623-26 (2d ed. 1990)); Hanwha Azdel, Inc. v. C & D Zodiac, Inc., No. 6:12-cv-00023, 2013 WL 782791, at *2 (W.D. Va. Mar. 1, 2013) ("A common example of a prejudicial amendment is one that raises a new legal theory that would require the gathering and analysis of facts not already considered by the defendant and is offered shortly before or during trial." (emphasis added)). Notably, the court has not entered a scheduling order or set a trial date in this case.
VJT's major concern appears to be that it has already deposed several parties and now will not have the opportunity to question them about McKeown's newest claim. Although the Federal Rules of Civil Procedure place limits on a party's ability to take depositions, there are also exceptions to those rules. See Fed. R. Civ. P. 30. If McKeown will not stipulate to allow VJT an opportunity to take subsequent depositions, VJT may request leave from the court.
For the reasons set forth above, the court will grant in part and deny in part VJT's motion to dismiss, Hardie's motion to dismiss, and McKeown's motion for leave to file a third amended complaint. A separate order will be entered.
Section § 390.5: Definitions, Part 390, https://www.fmcsa.dot.gov/regulations/title49/section/390.5. But this guidance, like the regulations themselves, says nothing about vicarious liability for state tort-law claims. It states only that a motor carrier may not avoid the responsibility of complying with the FMCSRs, which the FMCSA has the power to enforce.
