United States District Court, D. Kansas
JAMES P. O'HARA, Magistrate Judge.
This is a diversity action arising from a motorcycle accident. The plaintiff, Greg Walker, was a passenger on the motorcycle. He sues the driver of the motorcycle, Scott Kitivoravong, and Kitivoravong's employers, DuPont and Axalta,  for injuries sustained in the accident. Pending before the court are two motions to amend pleadings pursuant to Fed.R.Civ.P. 15(a)(2). First, DuPont and Axalta move for leave to amend their answer to assert a crossclaim for implied indemnity against Kitivoravong (ECF doc. 36). Second, Walker moves for leave to amend his complaint to add a claim for punitive damages against all defendants (ECF doc. 39). Under the liberal amendment standards of Rule 15, both motions are granted.
On March 18, 2012, Walker, who worked for an automotive-coating distributor, traveled from his Nebraska home to the Kansas City area for the purpose of attending a paint-conversion class the next day. The class was to be taught by Kitivoravong, who was a sales representative for DuPont. Kitivoravong invited Walker and George Stanich, a sales representative for another paint distributor, to dinner, and the three planned to meet at Kitivoravong's house in Olathe, Kansas. Walker arrived at Kitivoravong's house before Stanich, and Kitivoravong offered to take Walker on a motorcycle ride around the neighborhood while they waited for Stanich to arrive. Walker accepted. Unfortunately, Kitivoravong lost control of the motorcycle during the ride, causing it to leave the road and crash. Walker sustained substantial injuries in the accident.
Walker alleges that at the time of the accident, Kitivoravong was acting under the control and within the scope and course of his employment with DuPont and/or Axalta. Walker seeks to recover against DuPont and Axalta on a theory of vicarious liability and/or the respondeat superior doctrine. He moves to add assertions to support a punitive damages recovery. DuPont and Axalta move to assert a crossclaim for implied indemnity against Kitivoravong.
II. Legal Standard for Amendment
Pursuant to Fed.R.Civ.P. 15(a)(2), once a responsive pleading has been filed, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Rule 15(a)(2) directs the court to "freely give leave when justice so requires." Although the granting of a motion to amend is within the court's discretion, the United States Supreme Court has indicated that Rule 15's directive to freely give leave is a "mandate... to be headed." "A district court should refuse leave to amend only [upon] a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.'"
III. Walker's Motion to Add Punitive Damages Theory (ECF doc. 39)
Walker seeks leave to amend his complaint to assert a prayer for punitive damages against each defendant. Walker's motion is premised on two pieces of information obtained in discovery: (1) a DuPont policy allowing the consumption of alcohol by employees within the scope of employment, and (2) the results of a Blood Alcohol Content (BAC) test given to Kitivoravong indicating a BAC of more than twice the legal limit for operating a motor vehicle. Walker's proposed amended complaint adds allegations that Kitivoravong acted in a reckless, wanton, and willful manner which was authorized and/or ratified by DuPont and Axalta.
Kitivoravong has filed a response opposing the motion (ECF doc. 46), as have DuPont and Axalta (ECF doc. 43). The separate responses both oppose amendment solely on the ground that amendment would be futile because the proposed punitive-damages assertions fail to state a plausible claim for relief.
A court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or if it otherwise fails to state a claim. In considering whether a proposed amendment is futile, the court uses the same analysis that governs a Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim. Therefore, the court will only deny an amendment on the basis of futility when, accepting the well-pleaded allegations of the proposed amended complaint as true and construing them in the light most favorable to the plaintiff, the court determines that the plaintiff has not presented "enough facts to state a claim to relief that is plausible on its face." "The party opposing the proposed amendment bears the burden of establishing its futility."
Under Kansas law,  "punitive damages may be awarded whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy." K.S.A. 60-3702(c) requires that the plaintiff seeking punitive damages has the burden "of proving, by clear and convincing evidence... that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice." In addition, when the defendant is the employer, K.S.A. 60-3702(d)(1) provides that the employer may not be held liable for punitive damages based on the acts of the employee "unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the... employer."
Defendants have failed to demonstrate that Walker's proposed amended complaint does not include a plausible prayer for punitive damages against each of them. Walker's proposed amended complaint pleads that Kitivoravong acted in a reckless, wanton, and willful manner. It states that "prior to the accident, Defendant Kitivoravong had consumed alcohol, in amounts sufficient to give rise to a blood alcohol content of.16 at the time of the motorcycle crash at issue." It also alleges, "That in the course of employing all its employees, Defendants DuPont and Axalta had a policy which explicitly allowed for entertainment of business clients, including dining and alcoholic consumption." The proposed amended complaint then asserts that Axalta and DuPont authorized and/or ratified Kitivoravong's reckless, wanton, and willful behavior.
Defendants' arguments against amendment are unavailing. Kitivoravong asserts that the BAC report is not evidence of willful, wanton, or reckless conduct by Kitivoravong. But Walker had no obligation, at this juncture, to ...