Koster v. Kinder Morgan, Inc.

Michael Koster, Plaintiff, v. Kinder Morgan, Inc., et al., Defendants.

Case No. 20 C 50031

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS WESTERN DIVISION

June 17, 2020

Judge Philip G. Reinhard

ORDER

For the reasons stated below, defendant's motion to dismiss [27] is denied.

STATEMENT-OPINION

Plaintiff, Michael Koster, a citizen of Illinois, brings this action against defendant, Kinder Morgan, Inc., a Delaware corporation with its principal place of business in Texas, to recover for personal injuries he sustained when a gas pipeline operated by defendant exploded. The amount in controversy exceeds $75,000. Jurisdiction is proper under 28 U.S.C. § 1332(a)(1). Plaintiff alleges his injuries were caused by defendant's violation of the Illinois Public Utilities Act (220 ILCS 5/1-101 et seq.) (Count I) and by defendant's negligence and willful and wanton conduct (Count II). Defendant moves to dismiss [27] for failure to state a claim and for failure to join a necessary and indispensable party. Fed. R. Civ. P. 12(b)(6) & (7).

The following facts are taken from the complaint. On December 5, 2017, plaintiff was working as a laborer on an M & R Farms crew placing drain tile on agricultural land in Lee County, Illinois when the tiling plow struck a pipeline causing a breach in the pipeline, an explosion, and fire. The pipeline is owned by Natural Gas Pipeline Company of America, LLC "(NGPL") and operated by defendant. Defendant is a member of NGPL owning a 50% interest. Plaintiff sustained personal injuries as a result of the explosion and fire including second and third degree burns over 65% of his body.

The M & R Farms crew was unaware there was a pipeline beneath the land near where they were placing the drain tile. The complaint alleges defendant had not adequately communicated the location of the pipeline to the public (through the dissemination of maps or other means) and had failed to properly maintain line markers on the surface to alert people to the presence of the underground pipeline, thereby failing to alert the M & R Farms crew to the presence of the underground pipeline their tiling plow struck.

Required Party (12(b)(7))

Defendant argues the case must be dismissed pursuant to Fed. R. Civ. P. 12(b)(7) for failure to join a necessary and indispensable party under Fed. R. Civ. P. 19. Defendant argues NGPL, as the owner of the pipeline, is a necessary and indispensable party that plaintiff failed to join in order to preserve diversity of citizenship jurisdiction. Defendant contends that the statute of limitations has run as to NGPL so it cannot now be joined and therefore the entire action must be dismissed.

This is a tort case. "It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit." Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7 (1990). "The Advisory Committee Notes to Rule 19(a) explicitly state that 'a tortfeasor with the usual 'joint-and-several' liability is merely a permissive party to an action against another with like liability'." Id. The Advisory Committee Notes to Rule 19(a) go on to state "[j]oinder of these tortfeasors continues to be regulated by Rule 20¹; compare Rule 14 on third-party practice." Fed. R. Civ. P. 19 (Advisory Committee Notes to 1966 Amendment). As a potential joint tortfeasor with defendant, NGPL was merely a permissive party. Temple, 498 U.S. at 7.

Defendant cites Provident Tradesmens Bank & Trust v. Patterson, 390 U.S. 102, 108-109 (1968) for the proposition that it "is well-settled that the owner is considered a necessary party" and stating "the U.S. Supreme Court determined that the vehicle owner in a traffic accident case is a necessary party." However, the U.S. Supreme Court in Temple distinguished Patterson. In Patterson, "the estate of a tort victim brought a declaratory judgment action against an insurance company. We assumed that the policyholder was a person who, under § (a), should be 'joined if feasible.' and went on to discuss the appropriate analysis under Rule 19(b), because the policyholder could not be joined without destroying diversity. After examining the factors set forth in Rule 19(b), we determined that the action could proceed without the policyholder; he therefore was not an indispensable party whose absence required dismissal of the suit." Temple, 498 U.S. at 7-8 (quotation marks and citations omitted).

In Patterson, the plaintiff sought a declaratory judgment against an insurer that a policy it had issued to Dutcher, covered Cionci who had been driving Dutcher's car at the time of the accident. The policy had a $100,000 limit for all claims arising out of a single accident. The plaintiff had a $50,000 liquidated claim against Cionci and sought to recover it from Dutcher's insurer. Dutcher was himself a defendant in two other actions arising out of the accident that had yet to be tried. The Supreme Court observed: "The action was for an adjudication of the validity of certain claims against a fund. Dutcher, faced with the possibility of judgments against him, had an interest in having the fund preserved to cover that potential liability. Hence there existed, when this case went to trial, at least the possibility that a judgment might impede Dutcher's ability to protect his interest, or lead to later relitigation by him." Patterson, 390 U.S. at 108. Itwas Dutcher's interest as the policyholder in preserving the fund created by the policy, not his ownership of the car, that led the Supreme Court to assume that Dutcher was a person who should be joined if feasible under Rule 19(a). Id. Thus, it was not his status as a potential joint tortfeasor but his status as the policyholder that made him a person who should be joined if feasible.

This fact made Patterson distinguishable from Temple where there were several potential joint tortfeasors, but plaintiff only sued one of them. "As potential joint tortfeasors with Synthes, Dr. LaRocca and the hospital were merely permissive parties. The Court of Appeals erred by failing to hold that the District Court abused its discretion in ordering them joined as defendants and in dismissing the action when Temple failed to comply with the court's order." Temple, 498 U.S. at 8. NGPL as a potential joint tortfeasor with defendant is merely a permissive party and plaintiff is not required to join it under Rule 19(a).

Rule 14(a)(1) allows a defendant to bring a third-party action against "a nonparty who is or may be liable to it for all or part of the claim against it." If defendant believes NGPL belongs in this case, Rule 14(a)(1) provides the proper vehicle to bring it in.

Negligence (12(b)(6))

In any negligence action, under Illinois law, a plaintiff must establish the existence of a duty, a breach of that duty, an injury that was proximately caused by that breach, and damages. Jablonski v. Ford Motor Co., 955 N.E.2d 1138, 1153-54 (Ill. 2011). To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). If the complaint (1) describes the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a speculative level, this requirement is met. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Plaintiff alleges defendant, as operator of the pipeline, had a duty to members of the public to alert them to the location of the underground pipeline by adequately marking on the surface the location of the underground pipeline and maintaining those markings in order to avoid people striking the pipeline while digging, that it breached that duty by failing to maintain the markings, that as a result of that failure plaintiff and the other members of the M & R Farms crew were unaware of the pipeline's location causing them to strike the pipeline with the tiling plow, causing an explosion and fire which injured him and caused him enduring pain and suffering and required him to incur medical expenses. This is enough to give defendant fair notice of the claim, the grounds on which it rests, and plausibly suggest plaintiff has a right to relief above the speculative level.

Willful and Wanton (12(b)(6))

Defendant argues plaintiff's willful and wanton conduct claim should be dismissed for failure to state a claim. Under Illinois law, "[t]here is no separate, independent tort of willful and wanton conduct. Rather, willful and wanton conduct is regarded as an aggravated form of negligence. To recover damages based upon a defendant's alleged negligence involving willful and wanton conduct, the plaintiff must allege and prove that the defendant owed a duty to theplaintiff, that the defendant breached the duty, and that the breach was the proximate cause of the plaintiff's injury." Krywin v. Chicago Transit Authority, 938 N.E.2d 440, 452 (Ill. 2010). As discussed above, plaintiff has adequately alleged defendant owed him a duty, breached that duty, and the breach caused his injury. Whether he can prove defendant's negligence (involving willful and wanton conduct or not) is for determination at a later stage in this case.

Illinois Public Utilities Act 12(b)(6)

Defendant argues it is not a public utility subject to the Illinois Public Utilities Act ("Act"). Under the Act the term "public utility" means and includes, inter alia, "every corporation . . . whatsoever that . . . operates or manages, within this State, directly or indirectly, for public use, any plant, equipment or property used or to be used for or in connection with, . . . the conveyance of oil or gas by pipe line." 220 ILCS 5/3-105(a)(3). For purposes of this case, to fall within this definition, defendant must operate or manage a gas pipeline in Illinois for public use. See Illinois Landowners Alliance v....