PITTSBURGH – A Pittsburgh man pinned against a gasoline pump by a car involved in a nearby automobile accident is refuting an attempt by British Petroleum to dismiss his case, due to an alleged failure to join necessary parties.
Randy Bunting of Pittsburgh initially filed suit in the Allegheny County Court of Common Pleas on April 24 versus RK McKnight Road, LLC of Huntington, N.Y. and BP, PLC of London and Houston.
The suit explained that the defendants owned the property located at 4775 McKnight Road, Ross Township, Allegheny County, Pennsylvania 15237, on which a BP gas station was located.
“On or about May 7, 2021, at approximately 4:56 p.m., Lamar Simms was attempting to cross through the intersection of McKnight Road and Braunlich Drive. The aforementioned premises was located on the corner of this intersection. Simultaneously, Helen Gatto was attempting to turn right through the intersection while traveling west. While attempting to turn right, at a speed of around 15 miles per hour, Ms. Gatto suddenly struck the side of Mr. Simms’ vehicle,” the suit said.
“The impact with Mr. Simms’ vehicle caused Mrs. Gatto’s vehicle to turn and accelerate towards the BP gas station. Simultaneously, plaintiff was a patron at the BP gas station and was filling the tank of his vehicle. Suddenly and without warning, plaintiff was violently struck by Ms. Gatto’s vehicle, causing him to become pinned between her car and the gas pump.”
The suit added there existed a four-way intersection at and/or near the entrances to the at issue premises, as one of the intersecting roadways, McKnight Road, is a heavily-trafficked roadway with a speed limit of 40 miles per hour, and three lanes of travel on the side of the street the at-issue premises is located.
“As a direct and proximate result of the negligence and carelessness of the defendants, plaintiff sustained the following injuries, some or all of which are or may be permanent: a) Left tibia plateau fracture; b) Left bilateral tibial shaft fracture; c) Right tibia fracture; d) Broken right ankle; e) Hemorrhaging; f) Bruises, contusions and other injuries in or about nerves, muscles, bones, tendons, ligaments, tissues and vessels of his body; and g) Nervousness, emotional tension, anxiety and depression,” the suit stated.
“As a direct and proximate result of the negligence and carelessness of the defendants, plaintiff has suffered the following damages, some or all of which are continuing: a) Great pain, suffering, inconvenience, embarrassment, mental anguish, and emotional and psychological trauma; b) Plaintiff has undergone surgical procedures to address his severe injuries and he may require further surgical intervention in the future; c) Plaintiff has been required to expend large sums of money for medical treatment and care, hospitalization, medical supplies, surgical appliances, rehabilitation and therapeutic treatment, medicines, and other attendant services; d) Lost earnings, and plaintiff's earning capacity has been reduced and may be permanently impaired; e) Inability to enjoy various pleasures of life that she previously enjoyed; f) Loss and impairment of general health, strength, and vitality; and g) Permanent scarring and disfigurement.”
The defendants removed the case to the U.S. District Court for the Western District of Pennsylvania on May 19, arguing that the parties are completely diverse and the amount in controversy exceeds the jurisdictional minimum.
The defendants argued that since the plaintiff is a citizen of Pennsylvania, RK McKnight Road, LLC is a citizen of New York and BP is a company incorporated under the laws of England and Wales, the parties are completely diverse in citizenship.
“BP contests all damages and reserves the right to defend claims that it is liable for plaintiff’s alleged injuries. However, as pled, plaintiff’s allegations seek damages in excess of the jurisdictional minimum. Although the complaint does not set forth the amount of damages sought, other than that it is ‘in excess of the jurisdictional limits for compulsory arbitration’ of $50,000, the allegations in the complaint make clear that plaintiff is seeking damages in excess of $75,000,” the removal notice stated, in part.
“Given the allegations of severe pain and suffering, medical treatment, medical expenses, and the requirement for continuing care, the amount in controversy in this matter exceeds $75,000. Thus, while plaintiff does not designate a specific amount of damages, the nature of the allegations and damages requested in the complaint demonstrate that plaintiff’s claims as plead exceed the jurisdictional minimum.”
RK McKnight Road, LLC motioned to dismiss the case on July 10, due to an alleged failure on the part of the plaintiff to join indispensable parties.
“The plaintiff seeks relief from RK and BP due to their alleged negligence in owning and/or operating a property located at 4775 McKnight Road, Ross Township, Allegheny County, Pennsylvania, 15237, at which plaintiff sustained injuries during a vehicular accident. But the property in question was operated by a lessee (7-Eleven, Inc.) and an assignee (Miramar Brands Pennsylvania, Inc.) of the property, respectively, and under the terms of those agreements, both of those parties assumed full responsibility for the ownership, operation, and maintenance of the property. As such, they are necessary parties under Federal Rule of Civil Procedure 12(b)(7). This case must be dismissed, however, because those parties cannot be joined,” per the dismissal motion, in part.
“Plaintiff allegedly sustained his injuries on May 7, 2021. The statute of limitations for negligence in Pennsylvania is two years from the date of the negligence. 42 Pa. C.S. Section 5524(2). Plaintiff commenced this lawsuit on April 24, 2023, and he did not name either 7-Eleven, Inc. or Miramar Brands Pennsylvania, Inc. The two-year statute of limitations for naming those parties ran on May 7, 2023, and, as such, plaintiff has failed to name necessary parties for whom joinder is not possible. Moreover, plaintiff should have been aware of their existence, as signage readily visible at the property identifies 7-Eleven. Accordingly, no ‘discovery rule’ can toll the statute of limitations in this case. As those parties are indispensable, this case must be dismissed.”
According to the defendant in question, “significant prejudice to RK would result if this case were to proceed in the absence of the indispensable parties, but any prejudice to plaintiff resulting from a dismissal would be both minimal and of his own making, the lawsuit should be dismissed with prejudice.”
UPDATE
A July 31 brief from plaintiff counsel, which opposed the dismissal motion, countered that the supposed “necessary” parties were in fact, not that at all.
“Regardless of 7-Eleven and/or Miramar’s absence as parties from the instant suit, both such parties have a contractual obligation, pursuant to the aforementioned lease, to indemnify RK of claims arising or alleged to arise from the leased premises, with the exception of those claims arising from the gross negligence and/or intentional and wrongful acts of the landlord, RK,” per the opposition brief.
“Thus, any judgment rendered against RK in the instant case will necessarily be the obligation of 7-Eleven and Miramar, pursuant to the terms of the aforementioned lease and, as such, complete relief may be accorded to plaintiff, even in the absence of such unnamed parties from the instant case. As such, 7-Eleven and Miramar are not ‘necessary’ parties under Rule 19 (a)(1)(A) as the court may grant complete relief to plaintiff as a result 7-Eleven and Miramar’s contractual obligation to indemnify RK.”
The brief added that the defendant “has failed to present any facts, or even any indication, that a judgment in the instant case would impair or impede 7-Eleven and/or Miramar’s ability to protect any interest it holds in the subject matter of the litigation.”
“As such, moving defendant has failed to meet its burden as it pertains to Rule (a)(1)(B)(i). Accordingly, the relevant inquiry turns on whether a judgment made in the parties’ absence will ‘leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations because of the interest. Instead, RK has presented facts which would support the contrary,” according to the brief, in part.
For two counts of negligence, the plaintiff is seeking compensatory damages in excess of the jurisdictional limits for compulsory arbitration, plus court costs, interest and all other relief permitted by the court.
The plaintiff is represented by Peter D. Friday and Ian M. Watt of Friday & Cox, in Pittsburgh.
The defendants are represented by Christina Manfredi McKinley of Babst Calland Clements & Zomnir and John Kazmierczak of Maron Marvel Bradley Anderson & Tardy, both also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00850
Allegheny County Court of Common Pleas case GD-23-005309
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com