United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
Robert Hauserman filed an action against Defendants under
theories of negligence and vicarious liability. Hauserman
alleges Curtis Johnson injured Hauserman while operating his
truck under the employment of AJ Freight Systems, Inc. and/or
DD Logistics, Inc. Hauserman further claims National
Continental Insurance Co. (“NCIC”) is the
insurance carrier for AJ Freight and is therefore liable
under K.S.A § 66-1, 128. Before the Court is NCIC's
Motion to Dismiss (Doc. 11). For reasons explained below, the
Court grants Defendant's motion.
Factual and Procedural
November 14, 2015, Hauserman worked on his employer's
dock to unload an AJ Freight semi-trailer truck driven by
Johnson. Johnson backed the truck into the dock and stopped.
Hauserman stepped into the trailer and began unloading it.
During the unloading process, Johnson pulled away from the
dock. Hauserman fell to the ground behind the truck.
Subsequently, Johnson reversed the truck, pinning Hauserman
between the trailer and the dock. That night, Hauserman went
to the hospital for injuries related to the accident.
brought suit on February 28, 2017, alleging Johnson's
negligence caused his injuries, and AJ Freight and DD
Logistics are vicariously liable. Hauserman also alleges AJ
Freight and DD Logistics are liable for negligently hiring
and training Johnson. In his complaint, Hauserman claims
diversity of citizenship jurisdiction. Hauserman provides he
is a citizen of Kansas, and AJ Freight and DD Logistics are
corporations incorporated in Illinois, and NCIC is domiciled
in New York, while Johnson's citizenship is unknown.
8, 2017, NCIC filed this Rule 12(b)(6) motion, seeking
dismissal of the case against it. NCIC argues that Hauserman
failed to allege the filing and approval of a liability
insurance policy with the Kansas Corporation Commission
(“KCC”). Therefore, under Kansas case law,
Hauserman has not pleaded facts sufficient for the Court to
infer liability. The Court agrees.
Rule 12(b)(6), a defendant may move to dismiss a claim for
which a plaintiff “fails to state a claim upon which
relief can be granted.” A complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim of relief that is plausible on its face.'
” A claim is facially plausible if the Court
can reasonably infer the defendant is liable from the facts
pleaded.The plausibility standard reflects the Rule
8 requirement that pleadings must provide defendants with
fair notice of the claims, as well as the grounds upon which
the claims rest. The Court accepts all factual allegations
in the complaint as true and views them in a light most
favorable to the plaintiff. The Court, however, does not
apply the same standard to conclusory allegations or legal
motion, NCIC asserts Hauserman failed to allege NCIC is
liable under K.S.A. § 66-1, 128 because his complaint
failed to satisfy the conditions for a cause of action laid
out by the Kansas courts. In the relevant portion, K.S.A.
§ 66-1, 128(a) states:
(a) Except as provided in subsection (c) or pursuant to
federal statutes, no certificate, permit, or license shall be
issued by the commission to any public motor carrier of
property, household goods or passengers or private motor
carrier of property, until the applicant has filed with the
commission a liability insurance policy approved by the
The Kansas Supreme Court has held the statute allows a direct
action against an insurer of a motor carrier operating in the
State of Kansas under authority granted by the
But to allege liability against an insurer under K.S.A.
§ 66-1, 128, the plaintiff “must allege filing and
approval of the liability insurance policy with the
Hauserman's complaint fails to allege both the filing and
approval of an insurance policy with the KCC. NCIC is only
mentioned once in Hauserman's complaint. Paragraph five
of the complaint alleges NCIC is an insurance carrier for AJ
Freight and “at all material times there was in force a
liability insurance policy” issued by NCIC to AJ
Freight. The paragraph then alleges the policy covered AJ
Freight's operations as a “common carrier on Kansas
highways, ” and NCIC “is therefore liable under
[K.S.A. § 66-1, 128].”
allegations that NCIC is an insurance carrier for AJ Freight
and issued an insurance policy for AJ Freight are factual,
and considered true for the purpose of this motion. His
allegation that NCIC is liable under K.S.A § 66-1, 128,
however, is a conclusory allegation, and as such, the Court
will not consider it true for the purpose of this motion.
Simply put, the complaint fails to allege either the filing
of a policy with the KCC or the KCC's approval of an
insurance policy. Consequently, the complaint fails to meet
the conditions laid out by the Kansas Supreme Court to ...