Hays v. Bardasian, Cause No. 3:08-CV-518-AS-CAN.

• Decision Date: 08 May 2009
• Docket Number: Cause No. 3:08-CV-518-AS-CAN.
• Citation: 615 F.Supp.2d 796
• Parties: Victoria HAYS, as Personal Representative of the Estate of Jessica L. Ruiz, deceased, and Martin Ruiz, Individually and as the Father of Jessica L. Ruiz, Plaintiffs, v. Christopher D. BARDASIAN, Richard Weigandt, and Martin Ruiz, Defendants.
• Court: U.S. District Court — Northern District of Indiana

615 F.Supp.2d 796

Victoria HAYS, as Personal Representative of the Estate of Jessica L. Ruiz, deceased, and Martin Ruiz, Individually and as the Father of Jessica L. Ruiz, Plaintiffs, v. Christopher D. BARDASIAN, Richard Weigandt, and Martin Ruiz, Defendants.

Cause No. 3:08-CV-518-AS-CAN.

United States District Court, N.D. Indiana, South Bend Division.

May 8, 2009.

Gary S. Freed, Chamberlain, Hrdlicka, White, Williams & Martin, Atlanta, GA, Robert F. Gonderman, Jr., Gonderman Legal Corporation, PC, South Bend, IN, for Plaintiffs.

James H. Milstone, Kopka, Pinkus, Dolin & Eads, PC, Mishawaka, IN, James L. Thieman, PHV, Faulkner, Garmhausen, Kiester & Shenk, Co., LPA, Sidney, OH, Richard K. Helm, Rockhill Pinnick, LLP, Warsaw, IN, for Defendants.

MEMORANDUM OPINION & ORDER

ALLEN SHARP, District Judge.

This matter is before the Court on several motions filed by Defendant Richard Weigandt ("Mr. Weigandt"), including a Motion for Judgment on the Pleadings (Doc. No. 35), a Motion to Dismiss for failure to state a claim (Doc. No. 36), a Motion to Dismiss Martin Ruiz's cross-claims for failure to state a claim (Doc. No. 44), and a Motion for Judgment on the Pleadings as to Martin Ruiz's cross-claims (Doc. No. 45). The claims made by Victoria Hays ("Ms. Hays"), as Personal Representative of the Estate of Jessica Hays ("Jessica"), who is deceased, and the cross-claims made by Martin Ruiz ("Mr. Ruiz") similarly allege wrongful death, violation of I.C. 7.1-5-10-15.5, and joint enterprise, against Defendants Christopher Bardasian ("Mr. Bardasian") and Mr. Weigandt (collectively "Defendants") based on the events of July 4, 2008 resulting in Jessica's tragic death. The motions are considered with respect to the Second Amended Complaint filed on January 30, 2009, (Doc. No. 32) and the Cross-claims filed on March 4, 2009 (Doc. No. 41).

On April 7, 2009, the Court ordered that Mr. Ruiz be re-designated as a plaintiff, as agreed to by the parties, and therefore both Ms. Hays and Mr. Ruiz are the named plaintiffs ("the Plaintiffs") in this matter. As such, Mr. Weigandt relies on, and the Court considers, a single Memorandum of Law (Doc. No. 37) filed on February 12, 2009, in support of his motions. No responses were filed. For the reasons discussed below, the motions are DENIED, thereby allowing the parties time to engage in discovery and proceed as necessary under Rule 56.

I. Jurisdiction

On October 8, 2008, Ms. Hays filed a Complaint in Kosciusko Circuit Court which was removed to federal court by Defendants on November 7, 2008. Jurisdiction is proper on the basis of diversity, under 28 U.S.C. § 1332 (Doc. No. 18).

II. Standard of Review

A complaint must allege facts to state a claim to relief that is plausible on its face. Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In assessing the propriety of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), or alternatively, for judgment on the pleadings pursuant to Rule 12(c), the court accepts as true all well-pleaded factual allegations in the complaint and the inferences reasonably drawn from them. Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir.1999); Gillman v. Burlington Northern R.R. Co., 878 F.2d 1020, 1022 (7th Cir.1989). See also Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452, n. 3 (7th Cir.1998) (the primary difference between a Rule 12(b)(6) motion and a Rule 12(c) motion is that a party may file a 12(b) motion before its answer, but a party may move to dismiss the claim under Rule 12(c) after the pleadings are closed but within such time as not to delay the trial). In ruling on a motion to dismiss the cross-claim, a court uses the same standards of review that apply to claims made in the main complaint. See Cozzi Iron & Metal, Inc. v. U.S. Office Equipment, Inc., 250 F.3d 570, 574 (7th Cir.2001) (the court accepts all well-pleaded allegations in the counterclaim as true, and draws all reasonable inferences in favor of the counterclaim plaintiff). But the court admits only allegations of fact, and is not required to accept legal conclusions. Fries v. Helsper, 146 F.3d 452, 456 (7th Cir.1998); Challenger v. Local Union No. 1 of Intern. Bridge, Structural, and Ornamental Ironworkers, AFL-CIO, 619 F.2d 645, 649 (7th Cir. 1980). The court's inquiry is not whether plaintiff will ultimately prevail in a trial on the merits, but whether the plaintiff should be afforded an opportunity to offer evidence in support of the claims. Cole v. U.S. Capital, Inc., 389 F.3d 719, 724 (7th Cir.2004) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds).

A complaint need not set forth all relevant facts or recite the law; all that is required is a short and plain statement showing that the party is entitled to relief. Fed.R.Civ.P. 8(a); Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). Under federal pleading rules, a plaintiff is not limited to or bound by the legal characterizations of his claims contained in the complaint. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir.2000). Although the complaint itself need not specifically or correctly identify the legal basis for any claim, in response to a motion to dismiss that raises issues as to a claim, the plaintiff must identify the legal basis for the claim and make adequate legal arguments in support of it. Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041-42 (7th Cir.1999).

For purposes of Rule 12(c), pleadings include the complaint, the answer, and any written instruments attached as exhibits. See, Fed.R.Civ.P. 10(c); Northern Indiana Gun, 163 F.3d at 453 (concluding that the broader interpretation of "written instrument" comports with the generous nature in which we view pleadings, and therefore "written instrument," as used in Rule 10(c), includes documents such as affidavits) (citing Schnell v. City of Chicago, 407 F.2d 1084, 1085 (7th Cir.1969), overruled on other grounds by, City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973)). But see, Rose v. Bartle, 871 F.2d 331, 339-40, n. 3 (3d Cir.1989) (concluding that affidavits are not written instruments). Mr. Weigandt's affidavit was not attached to his Answers (Doc. No. 34, 43), it was attached to his Memorandum of Law in support of dismissal (Doc. No. 37-2), and therefore such an affidavit is proper for summary judgment purposes, but is not considered in today's ruling. Furthermore, references to police reports, statements made to the investigating officers, toxicology results, and witness disclosures, as referred to in Defendant's memorandum, yet not attached as exhibits to the pleadings, are not considered because they are also outside the scope of the pleadings.

III. Factual Background

On July 4, 2008, a collision occurred when Mr. Bardasian, driving his 2008 BMW M3L, crossed the center line while traveling northbound on East Wawasee Drive (south of County Road 1250 North in Kosciusko County), and struck Jessica who was driving her 2000 Ford Ranger Pickup south on East Wawasee Drive ("the collision"). The collision forced Jessica's Ford off of the road, and it burst into flames wherein Jessica died.

Prior to the collision, the facts of the complaint and cross-claim taken as true, reveal that Mr. Weigandt, father-in-law to Mr. Bardasian, witnessed his son-in-law consume alcohol and willfully furnished him with alcohol knowing that Mr. Bardasian was visibly intoxicated. Then, both Mr. Weigandt and Mr. Bardasian went on a joint venture (with a "mutual business, financial or pecuniary interest") to purchase golf clubs. (Seconded Amended Complaint, ¶¶ 27, 42, 43; Cross-Claims, ¶ 27, 42, 43). As a passenger in Mr. Bardasian's vehicle, Mr. Weigandt witnessed his son-in-law driving recklessly at an excessive rate of speed in a residential area, running another vehicle off of the roadway. Mr. Weigandt had the opportunity to stop Mr. Bardasian from thereafter causing harm to Jessica, yet breached the duty to the public and to Jessica by failing to control and manage the operation of the automobile in a proper manner. Mr. Bardasian's intoxication was the direct and proximate cause of Jessica's death, and Plaintiffs' claim that such actions were "willful, malicious, reckless, wanton, grossly negligent, negligent per se, and negligent." Id. ¶ 30.

Ms. Hays, Jessica's custodial mother, and Mr. Ruiz, Jessica's non-custodial father, now sue Defendants for the following: (1) wrongful death; (2) violation of I.C. 7.1-5-10-15.5 by furnishing alcohol to someone intoxicated who then causes harm; and (3) breach of the duty to control the car while engaging in a joint enterprise. At the time of her death, Jessica was nineteen years old, single, and a full time student at Indiana University.

IV. Discussion

(1) Wrongful Death and Joint Enterprise

"When the death of one is caused by the wrongful act or omission of another the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission." I.C. 34-23-1-1.

The action may be maintained against the person whose wrongful act or omission caused the injury or death of the child. I.C. 34-23-2-1(b). Pursuant to the Child Wrongful Death Act, a decedent is a child if, at the time of death, she is (1) unmarried; (2) without dependents; and (3) under twenty (20) years of age. I.C. 34-23-2-1(a)(1); Ledbetter v. Ball Memorial Hosp., 724 N.E.2d 1113, 1116 (Ind.Ct.App. 2000). Thus, Jessica was a child at the time of her death,¹ and her parents may maintain an action against the person whose wrongful acts or omissions caused her death. I.C....