United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
New Hampshire Insurance Company (NHIC) moves to dismiss all
claims made against it in Plaintiffs Amber Hankla and Thomas
Crain's First Amended Complaint for failure to state a
claim upon which relief may be granted [Doc. No. 10].
Plaintiffs have filed their response in opposition [Doc. No.
12] and NHIC has replied [Doc. No. 13]. The matter is fully
briefed and at issue.
First Amended Complaint alleges Plaintiffs were riding a
motorcycle (Crain was the operator and Hankla was a
passenger) when Defendant Lashavia Lee negligently drove his
semi-truck into oncoming traffic. FAC ¶¶ 8-9.
Plaintiffs allege that in order to avoid a collision, Crain
was forced to lay his motorcycle on its side and slide.
Id. ¶ 10. As a result of the maneuver, Hankla
was ejected from the motorcycle and Plaintiffs suffered
injuries. FAC ¶¶ 11-12. Plaintiffs sued Lee and his
employer, Defendant Atlas Inc., under tort theories of
negligence, negligence per se, and respondeat superior. FAC
at pp. 2-4.
to the Complaint, Atlas is a Delaware corporation and NHIC is
the “interstate liability carrier for Lee and Atlas,
doing business within the confines of the State of
Oklahoma.” Id. ¶¶ 4-5. Plaintiffs
further allege that “pursuant to Oklahoma Statute title
47 § 230.21, et. seq., [NHIC] is jointly and severally
liable for the negligence/actions of Lee and Atlas.”
Id. ¶ 22. This statutory provision is called
the “Motor Carrier Act of 1995” (MCA or the Act).
The MCA makes it unlawful for “any motor carrier to
operate or furnish service within [Oklahoma] without first
having obtained from the [Oklahoma Corporation Commission] a
license, ” id. § 230.28, and requires
that the carrier have an approved insurance policy or bond
requirement before the commission grants a license.
Id. § 230.30.
contends that, under the Act, Plaintiffs are precluded from
bringing a direct action against it. Indeed, in Fierro v.
Lincoln Gen. Ins. Co., 2009 OK CIV APP 62, 217 P.3d 158,
the Oklahoma Court of Civil Appeals (OCCA) was confronted
with the question of “whether the Oklahoma Motor
Carrier Act of 1995 permits a direct action against an
interstate motor carrier's liability insurer,
when the interstate motor carrier is properly registered in
its home state.” Id. at 159 (emphasis added).
The court answered in the negative.
reaching its conclusion, the OCCA looked to the Oklahoma
Supreme Court's decision in Daigle v. Hamilton,
1989 OK 137, 782 P.2d 1379, which held Oklahoma belonged to
the majority of States that prohibited joinder of a
defendant's insurer unless there existed a contract
permitting joinder, such as in uninsured motorist cases, or a
statute permitted it. The Fierro court noted that
Oklahoma took part in the single state system (47 Okla. Stat.
§ 162.1) whereby interstate motor carriers register and
insure in their home states. To this end, the court noted a
direct action was prohibited since § 230.30 of the Act
plainly stated that “after judgment against the carrier
for any damage, the injured party may maintain an action upon
the policy or bond to recover the same, and shall be a proper
party to maintain such action.” Fierro, 217
P.3d at 160 (quoting 47 Okla. Stat. § 230.30(A)).
court further noted that the reasons for the prohibition of a
direct action against a defendant's insurer
“besides statutory directive, include policy,
prohibition by judicial decision, lack of privity between the
injured plaintiff and the insurer, misjoinder of the tort
action and the action on the contract, and the enforcement of
the ‘no-action' clause in the policy.”
Id. at 160-61 (quoting Daigle, 782 P.2d
1380). Accordingly, the court affirmed summary judgment to
the insurer and found the plaintiff was barred from bringing
a direct action since he had not shown an infraction
sufficient to make the insurer a defendant under the MCA,
id. at 160, and he could proceed against the insurer
if he prevailed in his lawsuit and the insurer did not
fulfill its duty after judgment was entered. Id.
and Fierro, Oklahoma federal courts have been
unanimous in holding that insurance companies for interstate
carriers who have not filed proof of insurance in Oklahoma
may not be named as joint defendants. See, e.g., Simpson
v. Litt, No. CIV-17-339-R, 2017 WL 2271484, at *3 (W.D.
Okla. May 23, 2017) (“The Oklahoma Supreme Court in
Daigle seemed to lay a blanket rule that a plaintiff
could maintain a joint, direct action against the carrier and
the insurer by virtue of the carrier's obligation to
maintain insurance under the statute. …Under that
reasoning, § 230.30 would seem to allow Mr. Simpson to
state a claim here. Unfortunately for him, the Oklahoma Court
of Civil Appeals carved out an exception to this rule in
Fierro … because neither § 169 nor
§ 230.30 applies to interstate motor carriers,
the interstate carrier's insurance company cannot be
named as a defendant prior to judgment being entered against
the carrier.”) (emphasis in original, collecting
cases). Courts have noted a direct action against
an insurer may be proper “if the Oklahoma Corporation
Commission has issued it a motor carrier license.”
response states they cannot admit or deny, as their pleading
alleges, whether NHIC is the interstate liability carrier for
Atlas. Pl. Resp. at 2. Plaintiffs further state they do not
know whether Atlas was properly registered in its home state.
Id. at 4. Plaintiffs only state that NHIC is a
proper party under §§ 169 and 230.30, id.
at 2-4, and conclude by asserting “Plaintiffs have
asserted a cause of action against New Hampshire Insurance
Company pursuant to the Oklahoma's motor carrier act of
1995. Defendant now bears the burden of establishing that
there is no possible cause of action against them.”
Id. at 4.
statement is incorrect. Plaintiffs have the burden-in the
first instance- of pleading sufficient factual allegations,
which, if taken as true, “state a claim to relief that
is plausible on its face.” Khalik v. United Air
Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plaintiffs must “nudge [their] claims across
the line from conceivable to plausible” in order to
survive a motion to dismiss. Id. Mere labels,
conclusions, or formulaic recitations of the elements of a
cause of action will not suffice. Id. at 1191.
Plaintiffs' complaint only sets forth the bare assertion
that NHIC is liable under the MCA. First Amended Complaint
¶ 22 (“pursuant to Oklahoma Statute title 47
§ 230.21, et. seq., [NHIC] is jointly and severally
liable for the negligence/actions of Lee and Atlas.”).
Plaintiffs, however, do not cite any facts sufficient to make
NHIC a defendant under the MCA. Fierro, 217 P.3d at
160. Accordingly, the Court finds that NHIC's Motion to
Dismiss should be granted. Where dismissal is granted for
failure to state a claim, the Court should grant leave to
amend freely “if it appears at all possible that the
plaintiff can correct the defect.” Triplett v.
Leflore County, Okla., 712 F.2d 444, 446 (10th
Cir.1983). Leave to amend is not automatic and may be
properly denied where an amendment would be futile.
Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir.
2004). Indeed, a court properly may deny amendment as futile
when the proposed amended complaint would be subject to
dismissal for any reason, including that the amendment would
not survive a motion for summary judgment. E.spire
Commc'ns, Inc. v. N.M. Pub. Regulation Comm'n,
392 F.3d 1204, 1211 (10th Cir. 2004).
amendment may be futile in light of the aforementioned
discussion, the Court is unwilling to state that, at this
stage of the proceedings, Plaintiffs are unable to state a
claim upon which relief may be granted. Accordingly,