Glover v. Hryniewich
| Decision Date | 07 February 2020 |
| Docket Number | Civil Action No. 2:17cv110,Civil Action No. 2:17cv109 |
| Citation | 438 F.Supp.3d 625 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | David I. GLOVER, Plaintiff, v. Richard J. HRYNIEWICH and The City of Norfolk, Virginia Defendants. Timothy B. Pridemore, Plaintiff, v. Richard J. Hryniewich and The City of Norfolk, Virginia Defendants. |
Keith John Leonard, John Ignatius Paulson, Nicholas Lee Woodhouse, Huffman & Huffman, Newport News, VA, for Plaintiff.
David Harlen Sump, William Andrew McNinch Burke, Willcox & Savage PC, Norfolk, VA, for Defendant
This matter is before the Court on several outstanding motions in Glover v. Hryniewich et al. (2:17cv109) and Pridemore v. Hryniewich et al. (2:17cv110). According to the Court's records, the following motions are ripe for decision:
For the reasons stated herein, the Court CONSOLIDATES the cases for all further proceedings. Furthermore, the Court RULES as follows on the remaining motions: (1) GRANTS Hryniewich's Motion for Summary Judgment; (2) DENIES the City's Motion for Summary Judgment; (3) DENIES Hryniewich's Motion for Res Judicata as MOOT; (4) RESERVES RULING on SBI's Motion for Summary Judgment; (5) RESERVES RULING on SBI's Motion to Exclude; (6) GRANTS SBI's Motion to Withdraw as Attorney; (7) GRANTS SBI's Motion to Amend / Correct Scheduling Oder to Extend Deadline for De Bene Esse Depositions; (8) RESERVES RULING on Willard's Rule 14 and 19 Motions; (9) GRANTS the City's Motion to Stay. The Case is hereby STAYED until further order of the Court.
On March 21, 2016, Plaintiffs ("Glover and Pridemore") each filed a complaint against the City of Norfolk ("City") and Hryniewich (collectively, "City Defendants") in Norfolk Circuit Court ("State Actions"). Doc. 6, Ex. 1.1 City Defendants responded with Pleas in Bar in the State Actions and Plaintiffs filed Motions to Strike Defendants' Pleas in Bar. Id. at 2. On December 16, 2016, the Norfolk Circuit Court denied Plaintiffs' Motions to Strike. Doc. 7 at 3.
On February 23, 2017, Plaintiffs filed the instant Complaints in this Court ("Federal Actions"). They allege negligence and gross negligence on the part of the City and Hryniewich individually. Doc. 1.
On March 6, 2017, the Court ORDERED that the Federal Actions be consolidated for discovery purposes only. Doc. 4 at 1. On April 21, 2017, Defendants filed a Motion to Dismiss or Stay Pursuant to Rule 12(b)(1) ("Motion to Dismiss"). Doc. 5. On August 4, 2017, the Court GRANTED the Motion to Dismiss in part, and stayed the Federal Actions pending a Norfolk Circuit Court ruling on whether sovereign immunity was available to City Defendants in the State Actions. Doc. 11.
By letter opinion dated August 18, 2017, the Norfolk Circuit Court found that the City was engaged in a governmental function at the time of the alleged negligent incident. Therefore, the court held that the City was entitled to sovereign immunity under Virginia law. See Doc. 12, Ex. A at 1. The Norfolk Circuit Court further held that Hryniewich was entitled to sovereign immunity for Plaintiffs' simple negligence claims, but not for their gross negligence claims. Id. Given the Norfolk Circuit Court's finding of sovereign immunity, this Court found that abstention was inappropriate and denied Defendants' Motion to Dismiss. Doc. 13.
On October 31, 2017, Hryniewich and the City filed Third-Party Complaints against Willard. See Doc. 26 (Hryniewich's Complaint); Doc. 28 (City's Complaint). The Complaints allege that the contract between the City and Willard ("Contract") "required Willard to obtain workers' compensation, commercial general liability, and umbrella/excess liability insurance naming the City as an additional insured." Doc. 28 at 4. "The Contract required this insurance to cover the City and its Sea Trial representatives for all aspects of the Contract work," and "would have provided for the City's defense, and for the defense of Officer Hryniewich, and covered any liability incurred by the City (directly or on behalf of Officer Hryniewich) in the instant suits and the State Actions up to $2,000,000." Id. The City alleges that, "upon information and belief," Willard failed to secure excess or umbrella liability insurance and thus materially breached the Contract. Id. Hryniewich also alleges Breach of Contract to Procure Insurance, and states that "[a]s the City's Sea Trial representative, [he] was an intended third-party beneficiary of the Contract's Insurance Requirements clause." Doc. 26 at 4. City Defendants request indemnity for "any judgment, verdict, or settlement" in the state and federal suits relating to this matter, and "attorneys' fees and costs incurred" in defending the state and federal suits. Id. at 5; Doc. 28 at 5.
The same day, City Defendants filed Third-Party Complaints against SAFE Boats International, LLC ("SBI"), Doc. 27 (Hryniewich's Complaint); Doc. 29 (City's Complaint). The City purchased a 27-foot aluminum hull vessel ("MARINE 5" or "Vessel") from SBI in 2007. Doc. 29 ¶ 5. City Defendants allege that SBI: (1) failed to include a copy of the boat operator's handbook with the purchase, id. ¶ 11; (2) sold MARINE 5 in "an unreasonably dangerous condition by failing to provide engine power limitations that would allow the vessel to execute turns that are an ordinary party of her mission," id. ¶ 36; and (3) failed to exercise reasonable care to ensure City Defendants were aware of the risk that MARINE 5 would capsize during a high-speed turn, id. ¶ 37. Accordingly, City Defendants assert claims against SBI for: general maritime products liability (Count I); strict products liability (Count II); breach of express warranty (Count III); breach of implied warranty of merchantability (Count IV); and breach of implied fitness for a particular purpose (Count V).
See generally id. City Defendants seek indemnity for any liability they may incur for the accident.
On March 22, 2018, Defendants filed a Notice informing the Court that two (2) issues had been certified for interlocutory appeal to the Supreme Court of Virginia in the State Actions: (1) the Norfolk Circuit Court's grant of sovereign immunity for the City in a general maritime law case, and (2) that court's denial of qualified immunity to Hryniewich. Doc. 56. Shortly after the Court denied Defendants' Motions for Judgment on the Pleadings. Doc. 60. In that order, the Court held that the City was not entitled to sovereign immunity. Id.
On July 20, 2018, Willard filed: (1) a Motion for Leave to File Its Fourth-Party Complaint, Doc. 67; (2) an alternative Motion to Add Necessary Party, Doc. 69; and (3) a Motion to Stay the case with respect to Willard, Doc. 65. The Court GRANTED Willard's Motion to Stay and RESERVED RULING on the remaining motions on October 5, 2018. Doc. 108. For orderly disposition of the case, the Court further STAYED the case against SBI. Doc. 107.
Defendant Hryniewich filed a Motion for Summary Judgment on September 11, 2018. Doc. 90. Third-Party Defendant SBI filed a Motion for Summary Judgment on September 28, 2018. Doc. 99. On September 21, 2018, SBI filed a Motion to Exclude Third-Party Plaintiffs' Expert. Doc. 92. The motion became ripe on August 12, 2019. On October 29, 2018, this Court ORDERED that the case be continued pending the resolution of the interlocutory appeal to the Virginia Supreme Court regarding, inter alia, sovereign immunity. Doc. 115.
Plaintiffs filed the Motion to Set Trial on July 18, 2019. See Doc. 119. The Court at a hearing on September 19, 2019, DENIED the Motion to Set Trial and STAYED the Case pending a ruling from the Norfolk Circuit Court on whether Hryniewich was entitled to qualified immunity for gross negligence. See Doc. 143. On November 4, 2019, the parties filed a Joint Status Report informing this Court that the Norfolk Circuit Court determined that Hryniewich is entitled to federal qualified immunity. See Doc. 144-1 at 13. Additionally, Norfolk Circuit Court stated that the plainly incompetent doctrine or the state-created danger doctrine did not serve to overcome Officer Hryniewich's immunity. Id. Because of the Norfolk Circuit Court's ruling, Hryniewich has filed a Motion to Dismiss for Res Judicata on November 15, 2019. Doc. 147. The Court held a hearing on November 21, 2019 where the Court GRANTED summary judgment to Hryniewhich and took the other motions under advisement. After this hearing, the City filed its Motion for Summary Judgment. Doc. 152. Additionally, SBI has filed its Motion to Amend / Correct the Scheduling Order to Extend Deadline for De Bene Esse Depositions. Doc. 160. The Court held a hearing on January 15, 2020 and heard argument on both the City's Motion for Summary Judgment and SBI's Motion to Amend / Correct the Scheduling Order.
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