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Murray Scheinman, Plenary Guardian of the Estate and Person of v. Martin's Bulk Milk Service

April 12, 2011

MURRAY SCHEINMAN, PLENARY GUARDIAN OF THE ESTATE AND PERSON OF JEFFREY J. SCHEINMAN, A DISABLED PERSON, PLAINTIFF,
v.
MARTIN'S BULK MILK SERVICE, INC., SAMUEL G. FRANKE, CSX INTERMODAL, INC., INTERNATIONAL PAPER COMPANY, OVERNITE EXPRESS, INC., OX LLC, UNIVERSAL AM CAN LTD., DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman Chief Judge, United States District Court

MEMORANDUM OPINION AND ORDER JAMES F. HOLDERMAN, Chief Judge:

Plaintiff Murray Scheinman ("Plaintiff") brings this lawsuit in his capacity as guardian of the estate and person of Jeffrey J. Scheinman ("J. Scheinman"), seeking damages for injuries sustained by J. Scheinman when the car he was driving was rear-ended by a tractor trailer truck driven by defendant Samuel G. Franke ("Franke") on July 3, 2008, near the intersection of Skokie Valley Road and Half Day Road in Highland Park, Illinois. (Dkt. No. 94 ("4th Am. Compl.").)

Plaintiff has alleged four claims of negligence against Franke (Counts I-IV), as well as one negligence claim each against defendants Martin's Bulk Milk Service, Inc. ("MBMS") (Count I), CSX Intermodal, Inc. ("CSXI") (Count II), International Paper Company ("IPC") (Count III), and Overnite Express, Inc. ("OEI"), OX LLC ("OX"), and Universal Am Can Ltd.

("UACL") (Count IV).*fn1 This court has jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1332(a).*fn2

Defendants MBMS and Franke have answered Plaintiff's Fourth Amended Complaint. (Dkt. No. 100 ("MBMS/Franke Ans.").) Now pending before the court are CSXI's motion to dismiss (Dkt. No. 123), IPC's motion to dismiss (Dkt. No. 94), and UACL, OEI, and OX's motion to dismiss (Dkt. No. 96). For the reasons set forth below, CSXI's motion is granted, IPC's motion is denied, and UACL, OEI, and OX's motion is denied.

BACKGROUND

For purposes of the pending motions to dismiss, the court accepts the factual allegations in Plaintiff's Fourth Amended Complaint as true and draws all reasonable inferences in favor of Plaintiff. Ray v. City of Chi., 629 F.3d 660, 662 (7th Cir. 2011). The facts set forth below are therefore stated from this perspective.

On July 3, 2008, J. Scheinman was driving northbound on Skokie Valley Road in a passenger car. (Count I, ¶ 7.) On the same date, Franke was also driving northbound on Skokie Valley Road in a tractor trailer truck. (Count I, ¶ 4, 6.) The tractor trailer truck driven by Franke collided with the rear end of J. Scheinman's passenger car near the intersection of Skokie Valley Road and Half Day Road in Highland Park, Illinois, causing J. Scheinman serious personal injury. (Count I, ¶¶ 6-11.)

MBMS is a corporation "engaged in the business of truck transportation and delivery of milk products." (Count I, ¶ 3.) MBMS owned the tractor trailer truck driven by Franke on July 3, 2008, "with a Freightliner Classic cab bearing vin number 1FUJF6CKX4DM02330," and Franke was an employee of MBMS at the time of the July 3, 2008 accident. (Count I, ¶¶ 5-6; see also MBMS/Franke Ans. ¶ 6 (admitting "the referenced employment relationship").)

CSXI is a corporation "engaged in the business of truck transportation of consumer goods in tractor trailer trucks." (Count II, ¶ 3.) CSXI provided Franke with a trailer "for the transportation of paper products" on July 3, 2008, after Franke "delivered a load of goods to [CSXI's] facility located in Bedford Park, Cook County, Illinois." (Count II, ¶ 6.) CSXI owned trailer number CSXU 937987, which was attached to the tractor trailer truck driven by Franke on July 3, 2008. (Count II, ¶ 7.)

IPC is a corporation "engaged in the business of selling paper and packaging products." (Count III, ¶ 3.) On July 3, 2008, IPC loaded trailer number CSXU 937987 with paper products at IPC's facility in Hammond, Indiana. (Count III, ¶ 7.) Franke drove the tractor trailer truck containing IPC's paper products "pursuant to the direction and supervision of [IPC]." (Count III,¶ 8.)

UACL, OEI, and OX (collectively the "UACL/OEI/OX Defendants"*fn3 ) are "engaged in the business of interstate transportation, including truck transportation of goods" and "requesting organizing coordinating, authorizing and arranging the transportation of goods by tractor trailer trucks." (Count IV, ¶¶ 3, 7.) On July 3, 2008, the UACL/OEI/OX Defendants had a contract with IPC "to transport paper products that were in [IPC's] possession, through their duly authorized employees, agents and/or apparent agents." (Count IV, ¶ 8.) On July 3, 2008, the UACL/OEI/OX Defendants "requested and directed" Franke and MBMS "to pick up [IPC's] paper product goods at a Hammond, Indiana warehouse, and transport those goods to various locations in Minnesota." (Count IV, ¶ 9.) Franke subsequently "drove to a warehouse owned by [IPC] to pick up a load of paper product goods for delivery in Minnesota" and thereafter drove the tractor trailer truck carrying IPC's paper products "pursuant to the request, direction, supervision and instruction of [the UACL/OEI/OX Defendants]" on July 3, 2008. (Count IV, ¶¶ 10-11.)

On July 3, 2008, Franke "operated and drove the[ ] . . . tractor trailer truck in such a manner as to cause it to collide with the rear end of the passenger car driven by [J. Scheinman]," including by failing to keep "a proper and sufficient lookout," proceeding "at a speed which was greater than reasonable and proper with regard to traffic conditions and the use of the highway," and failing "to give audible warning with [his] horn when such warning was reasonably necessary to ensure safety." (Count I, ¶¶ 8, 10; Count II, ¶¶ 9, 11; Count III, ¶¶ 10, 12; Count IV, ¶¶ 13, 15.)

Plaintiff has alleged that Franke was "a duly authorized employee, agent and/or apparent agent" of MBMS, CSXI, IPC, and the UACL/OEI/OX Defendants, and was "acting in the course and scope of said employment, agency and apparent agency" at all relevant times on July 3, 2008. (Counts I-IV, ¶¶ 5.)

PROCEDURAL HISTORY

Plaintiff originally filed this case against MBMS and Franke in state court on July 7, 2008. (Dkt. No. 89 ("9/9/2010 Order") at 2.) CSXI was added as a defendant on November 11, 2008, IPC was added as a defendant on July 23, 2009, and OEI was added as a defendant on August 19, 2009. (Id. at 3.) On August 28, 2009, IPC and ...


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