Linnin v. Michielsens, CIV.A. 2:05CV108.
| Decision Date | 01 June 2005 |
| Docket Number | No. CIV.A. 2:05CV108.,CIV.A. 2:05CV108. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Sharon LINNIN, Executor of the Estate of William R. Linnin, Deceased, Plaintiff v. Steve MICHIELSENS, Individually, the Hertz Corp., Hertz Equipment Rental Corp., Jlg Industries, Inc., and Jlg Equipment Services, Inc., Defendants |
Michael F. Imprevento, Breit Drescher & Imprevento PC, Norfolk, VA, for Sharon Linnin Executor of the Estate of William R. Linnin, Deceased, Plaintiff.
Jean-Pierre Garnier, Garnier & Garnier, P.C., Falls Church, Kevin Lawson Keller, Willcox & Savage PC, Kevin Patrick Greene, Willcox & Savage PC, Randolph Courtland DuVall, Breeden Salb Beasley & DuVall, Norfolk, VA, William Francis Marion, Jr., Haynsworth Sinkler Boyd PA, Greenville, SC, for Steve Michielsens Individually, The Hertz Corporation, Hertz Equipment Rental Corporation, JLG Industries, Inc., JLG Equipment Services, Inc, Defendants.
Presently before the Court is Plaintiff Linnin's Motion to Remand, which is based on the fact that Defendant Michielsens, a Virginia resident, destroys diversity. Plaintiff's motion is DENIED.1
This case involves an accident that occurred because a lift tipped over allegedly as the result of the fact that it was driven on an incline allegedly exceeding the manufacturer's specifications. On March 1, 2003, William R. Linnin, Plaintiff's husband, died while operating a JLG 110HX aerial lift at Busch Gardens, an amusement park in Williamsburg, Virginia. Mr. Linnin was employed as a painter for Hartman-Walsh Painting Company, which had contracted to paint some amusement rides at Busch Gardens. To accomplish the job, Hartman-Walsh had a contract to rent aerial lifts from Defendant Hertz. Apparently, Mr. Linnin was using one of the aerial lifts to clean and paint the exterior surface of a roller coaster when the lift became unstable, tipped forward, and pitched him to the ground. Mr. Linnin died from the injuries he suffered from the fall.
According to Plaintiff, Defendant Michielsens should have foreseen the lift's potential to tip over and should have warned all of the painting company's employees about this possibility, including the decedent. Three days prior to the accident, on February 25, 2003, the painting company had complained to Defendant Hertz about the lift's lack of power "to climb the hill located by the Lochness Monster roller coaster ride at Busch Gardens." Pl.'s Reply Mem. in Supp. of Mot. to Remand at Ex. A, p. 8. In response to the complaint, Defendant Hertz sent Defendant Michielsens, a mechanic, to service the lift's engine. In an affidavit, Defendant Michielsens stated that he "received thorough training on how to operate and service all of the equipment [Hertz rented]." Id. at Ex. B ¶ 2. According to a report by the Virginia Department of Labor and Industry, Defendant Michielsens replaced a fuel filter and "tested all operations." Id. at Ex. A, p. 8. He also "attempted to test the drive controls by traveling up a hill," but the "machine started to slide backwards down the hill until it went [off] the asphalt into the soft shoulder where it got stuck." Id. The mechanic then contacted the salesman for Hertz, who then, in turn, contacted a branch manager in order to have the lift towed. Id. Defendant Michielsens had nothing more to do with the lift or with the paint company's employees. The lift was neither "tagged out of service" nor disabled. Id. "When the machine was towed up the hill[,] it was parked in a parking lot until it was utilized 3-days later on 03/01/03 by an employee of the painting company." Id. The report goes on to state that "[t]he employee of the painting company drove the machine from the parking lot over to the Big Bad Wolf roller coaster ride where he then utilized it during painting operations and was subsequently fatally injured when the lift tipped over." Id.
When discussing Defendant Michielsens' involvement in the accident, the report indicated that "frequent/periodic inspections [were] not being performed as required by ANSI A92.5 1992" and concluded that the "rental company employees did not perform the required inspections on the last day that maintenance was performed out at the job site prior to the accident." Id. at 10. The report went on to find that the
... mechanic who serviced and operated the machine on 02/25/03... had not been trained on the inspection requirements as required by ANSI and the manufacturer, and that the machine must be maintained to manufacturer's specifications. The branch location itself did not recognize that the machine would need a detailed inspection after the mishap on 02/25/03.
Id. at 11 (emphasis added). Finally, the report observed that Defendant Michielsens did not recognize the dangers the lift might pose, noting: Id. Ultimately, concluding that Mr. Linnin used the lift on "an incline exceeding the manufacturer's specifications," the report recommended a $3750 penalty to be imposed on Hertz. Id. at 13.
On January 10, 2005, Plaintiff, Mr. Linnin's wife, the Executor of his estate, and a resident of the Commonwealth of Virginia, filed a negligence and product liability action in the Circuit Court of the City of Norfolk against the following Defendants:
1. Steve Michielsens, the mechanic who serviced on February 25, 2003 the aerial lift involved in Mr. Linnin's accident. Mr. Michielsens was an employee of Hertz Equipment Rental Corporation, a co-defendant, at the time. He is a citizen of the Commonwealth of Virginia.
2. The Hertz Corporation, which, among other things, rents equipment that includes aerial lifts. The Hertz Corporation is a Delaware corporation.
3. Hertz Equipment Rental Corporation, which rented the aerial lift to Mr. Linnin's employer. Hertz Equipment Rental Corporation is a Delaware corporation.2
4. JLG Industries, Inc., which designs, manufactures, and sells aerial lifts known as model 110HX aerial lifts. JLG Industries is a Pennsylvania corporation.
5. JLG Equipment Services, which rents and services industrial equipment such as model 110HX aerial lifts. JLG Equipment Services is a Pennsylvania corporation.3
Out of the five defendants, only Defendant Michielsens is a citizen of the Commonwealth of Virginia. Consequently, as Defendants seek to remove the action to this Court, his inclusion as a party is highly contested as it destroys diversity.
In the Motion for Judgment, Plaintiff makes the following allegations:
1. Count One alleges that "defendants Michielsens and Hertz, and each of them, negligently leased, rented, serviced, maintained and inspected" the aeriel lift and that Hertz "knew or should have known by its agent and servant that the lift was being used under circumstances that implicate the need for certain safety devices and features which were not functioning at the time of the incident as required and had not been properly inspected, maintained and/or serviced prior to March 1, 2003, and should have removed the vehicle from service prior to March 1, 2003." Mot. for J. ¶ 11.
Plaintiff also alleges in Count One that "defendants Michielsens and Hertz, and each of them, were otherwise negligent with respect to the aerial lift and further failed to inform the decedent or his employer of such unreasonably dangerous and unsafe condition ... despite actual knowledge of the conditions of the lift...." Id. ¶ 12.
2. Count Two alleges that "defendants Michielsens and Hertz, and each of them, negligently failed to warn, instruct, and apprise the decedent of the dangers and hazards of using the aerial lift...." Id. ¶ 16.
3. Count Three alleges that "defendants Michielsens and Hertz, and each of them, expressly and impliedly warranted that the aerial lift ... was of merchantable quality, fit and safe for its intended and ordinary uses...." Id. ¶ 19.
4. Count Four alleges that "defendants JLG, and each of them, negligently designed, manufactured, assembled tested, labeled, marketed, distributed and sold the subject aerial lift in such a manner as to render said lift unreasonably dangerous for its ordinary and/or foreseeable uses." Id. ¶ 23. Count Four also alleges that defendants JLG "were otherwise negligent with respect to the aerial lift's warnings and instructions...." Id. ¶ 24.
5. Count Five alleges that "defendants JLG, and each of them, expressly and impliedly warranted that the aerial lift ... was of merchantable quality, fit and safe for its intended and ordinary uses...." Id. at ¶ 30.
Plaintiff's Motion for Judgment alleges compensatory damages of $15,000,000.
Defendants Michielsens and Hertz filed a joint Grounds of Defense on February 1, 2005; Defendants JLG filed its Grounds of Defense on February 7, 2005. On February 18, 2005, Defendants removed the case pursuant to 28 U.S.C. § 1332 on the basis of diversity of citizenship, claiming that Defendant Michielsens was either fraudulently joined or, alternatively, was a nominal party whose residence should be disregarded for diversity purposes.
On February 24, 2005, Plaintiff filed a Motion to Remand and a Memorandum of Law in support of its Motion. Defendants JLG filed their opposition on March 7, 2005, and Plaintiff filed its Reply on March 18, 2005. A hearing was held on the matter on April 12, 2005. The matter is ripe for judicial determination.
Pursuant to Section 2, Clause 1 of Article III of the United States Constitution, the federal courts are empowered to have jurisdiction over cases involving controversies between citizens of different states or between a citizen of a state and an alien. The Judiciary...
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