Kohn v. Norfolk and Western Ry. Co.

• Decision Date: 11 June 1997
• Docket Number: No. 3:96-CV-0911 AS.,3:96-CV-0911 AS.
• Citation: Kohn v. Norfolk and Western Ry. Co., 966 F.Supp. 789 (N.D. Ind. 1997)
• Parties: Ida Faye KOHN, Individually and as Administratrix of the Estate of William F. Kohn, Deceased, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Indiana

966 F.Supp. 789

Ida Faye KOHN, Individually and as Administratrix of the Estate of William F. Kohn, Deceased, Plaintiff, v.NORFOLK AND WESTERN RAILWAY COMPANY, Defendant.

No. 3:96-CV-0911 AS.

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

June 11, 1997.

John S. Bishof, Chicago, IL, for Plaintiff.

John C. Duffey, Geoffrey L. Blazi, Stuart and Branigin, Lafayette, IN, Evan Burton Karnes, II, Janet A. Pioli, Daniel Seltzer, Evan B. Karnes II and Associates, Chicago, IL, for Defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This cause is before the court pursuant to the motion for judgment on the pleadings filed by the defendant, Norfolk and Western Railway Company("N&W"), on February 28, 1997.In this motion, the defendant seeks to dismiss only Count II of the Complaint pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.On May 22, 1997, this court held oral argument on this motion in Lafayette, Indiana.This memorandum will follow up on the proceedings held in open court on May 22 and deal with the issues that were there presented.

I.FACTUAL BACKGROUND

This case arises from an accident that occurred in rural Starke County, Indiana, on May 4, 1995.The uncontradicted facts surrounding this accident are as follows.On May 4, 1995, the plaintiff's decedent, William Kohn("Kohn"), was the driver of a semi-tractor trailer truck traveling northbound on Range Road, approaching a railroad crossing.As Kohn approached the railroad crossing, a train operated by N&W was traveling on the tracks toward the crossing.As Kohn crossed the railroad tracks, the train struck Kohn's truck.

As a result of this accident, Kohn suffered "severe injuries, both internally and externally, including severe and extensive burns over his entire body...."SeeComplaint, Count IIat ¶ 12.Following the accident, Kohn was taken to Starke County Hospital in Knox, Indiana, where he was initially treated.That same day, Kohn was transported to St. Joseph Hospital in Fort Wayne, Indiana.On May 8, 1995, as a result of the injuries suffered in the accident, Kohn died at St. Joseph Hospital.

II.PROCEDURAL BACKGROUND

The plaintiff, Ida Faye Kohn, has filed this action individually and as administratrix of the Estate of William Kohn.This cause was originally filed by the plaintiff in the United States District Court for the Northern District of Illinois on July 2, 1996.On August 29, 1996, the defendant filed a motion to transfer this cause to this district pursuant to 28 U.S.C. § 1404(a).On December 4, 1996, Judge Holderman of the Northern District of Illinois granted the defendant's motion to transfer.

The Complaint presents three causes of action.In Count I, the plaintiff raises a wrongful death claim, including a claim for loss of consortium.In Count II, the plaintiff apparently presents a personal injury tort claim on behalf of the decedent, seeking damages for the decedent's "conscious pain and suffering" from the time of the accident on May 4, 1995, until the date of his death on May 8, 1995.In Count III, the Estate pleads a federal claim, alleging that the defendant violated the plaintiff's rights under the Federal Boiler Inspection Act, 49 U.S.C. § 20701.

On February 28, 1997, the defendant filed the present motion for judgment on the pleadings.In this motion, the defendant seeks dismissal only of Count II of the Complaint.Specifically, N&W asserts that if the Estate is to recover for Kohn's alleged pain and suffering from the date of the accident until the date of death, the claim must stand or fall under the Indiana Survival Statute, IND.CODE § 34-1-1-1.The defendant asserts that, under the Indiana Survival Statute, the plaintiffs personal injury claim does not fall within the types of claims that may be brought by a decedent's estate after the decedent's death.Thus, N&W argues that the plaintiffs personal injury claim presented in Count II abated at Kohn's death and, consequently, that this court should dismiss Count II of the Complaint as a matter of law.In addition, N&W filed its first motion in limine, requesting that this court exclude from evidence at trial any offers of proof or argument by the plaintiff relating to the nature and extent of the injuries sustained by Kohn in the May 4, 1995, accident.

The plaintiff filed a response in opposition to defendant's motion for judgment on the pleadings and first motion in limine on March 19, 1997.In this response, the plaintiff asserts that the Boiler Inspection Act allows a private plaintiff to bring a survival action under federal common law.In support of this contention, the plaintiff submits the Boiler Inspection Act was passed as an amendment to the Federal Employers' Liability Act ("FELA"), which provides plaintiffs with a private cause of action.Thus, the Estate contends that, because FELA and the Boiler Inspection Act arise "out of the same cloth," the Boiler Inspection Act also provides private plaintiffs with a federal common law cause of action.Therefore, the plaintiff argues that the federal basis for the personal injury claim preempts any abatement of that claim under the Indiana Survival Statute.Thus, the Estate asserts that Count II should not be dismissed as a matter of law.

The defendant filed a reply to its motion for judgment on the pleadings on March 27, 1997.In its reply, the defendant contends that the Boiler Inspection Act does not provide for a private cause of action and, as a result, the plaintiff's argument for preemption is fatally flawed.Thus, the defendant maintains that the Indiana Survival Statute works to foreclose the plaintiff's personal injury claim presented in Count II.As a result, N&W reasserts its contention that, pursuant to Rule 12(c), it is entitled to judgment as a matter of law on Count II.

III.RULE12(C) STANDARD

The defendant has filed this motion for judgment on the pleading on Count II under Rule 12(c) of the Federal Rules of Civil Procedure.After the pleadings are closed, a defendant may seek dismissal for failure to state a claim upon which relief can be granted by a motion for judgment on the pleadings.Fed.R.Civ.P. 12(c), (h).When no evidence outside the pleadings is submitted, a motion for judgment on the pleadings is reviewed under the standard of a Rule 12(b)(6) motion.Republic Steel Corp. v. Penn. Engineering Corp.,785 F.2d 174, 182-83(7th Cir.1986).

Dismissal of a complaint is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.Hishon v. King & Spalding,467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59(1984)(citingConley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80(1957)).See alsoDawson v. General Motors Corp.,977 F.2d 369, 372(7th Cir.1992).This court must accept the well-pleaded, factual allegations of the complaint as true, "construe such allegations in favor of the plaintiff."Roots Partnership v. Lands' End, Inc.,965 F.2d 1411, 1416(7th Cir.1992).

IV.DISCUSSION

The defendant asserts that Count II of the plaintiff's complaint must be dismissed because it is foreclosed under the Indiana Survival Statute, IND.CODE § 34-1-1-1.¹The defendant contends that Count II is governed exclusively by the Indiana Survival Statute.Thus, because Kohn died as a result of injuries suffered in the accident, the defendant argues that, under the Indiana Survival Statute, Kohn's personal injury claim abated at Kohn's death.The plaintiff counters by arguing that the claim in Count II arises under federal common law and not under the Indiana Survival Statute.Specifically, the plaintiff submits that the personal injury claim in Count II arises under the Federal Boiler Inspection Act, which preempts the law of the State of Indiana.Thus, the plaintiff argues that the personal injury claim on behalf of the decedent should be allowed to proceed under the mandates of federal common law.

A.INDIANA SURVIVAL STATUTE

The Indiana Survival Statute creates a limited spectrum of cases, personal to a decedent that survive after a decedent's death in favor of the personal representative of the decedent's estate.The Indiana Survival Statute, in its totality, reads as follows:

(a) All causes of action survive, and may be bought, notwithstanding the death of the individual who is entitled or liable in such an action, by or against the representative of the deceased party except actions for libel, slander, malicious prosecution, false imprisonment, invasion of privacy, and personal injuries to the deceased party, which shall survive only to the extent provided herein.An action under this section may be brought, or the court, on motion, may allow the action to be continued, by or against the legal representatives or successors in interest of the deceased.Such an action is considered as a continued action, and accrues to the representatives or successors at the time it would have accrued to the deceased if the deceased had survived.

(b) If an action is continued against the legal representatives or successors of a defendant, a notice shall be served on them as in the case of an original notice.

(c) If any action has been commended against the decedent before the decedent's death, the action is continued by substituting the decedent's personal representatives as in other actions surviving the defendant's death.If the action is brought after the death of a defendant, then the same action shall be prosecuted as are other claims against the decedent's estate.

(d)If a person receives personal injuries caused by the wrongful act or omission of another and subsequently dies from causes other than those personal injuries, the personal representative of the decedent who was injured may maintain an action against the wrongdoer to recover all damages resulting before the date of death from those injuries that the decedent would have been entitled to...