United States District Court, D. Maryland
CARLA ORTIZ, Individually, and on Behalf of her daughter, J.L., a minor
BEN STRONG TRUCKING, et al.
Catherine C. Blake United States District Judge.
18, 2018, a tractor trailer carrying a large load of shingles
northbound on Interstate 95 in Harford County, Maryland,
careened into the back of a passenger car that had slowed to
pilot through stop-and-go construction zone traffic. There
were multiple casualties. Carla Ortiz was the driver of the
first vehicle struck (two more vehicles would be hit), and
she brings this tort action against the truck driver and
various companies allegedly affiliated with the shipment on
behalf of herself and her minor daughter, who sustained
severe and permanently debilitating injuries. There are three
pending motions in this case. The first is a partial motion
to dismiss by Ben Strong Trucking Inc. ("Strong"),
the company that operated the truck at issue and employed its
driver, John Oliver Terry, Jr. (ECF No. 4). The second is a
motion to dismiss by Cowan Systems, LLC ("CSL"),
alleged to be the original carrier contracted to haul the
shipment. (ECF No. 12). The final pending motion is brought
by Cowan Systems Transportation, LLC ("CST") and
Cowan Systems, Inc. ("CSI"), seeking dismissal of
the claims against them or in the alternative for summary
judgment. The pending motions will be addressed in turn.
Standard of Review
ruling on a motion under Rule 12(b)(6), the court must
"accept the well-pled allegations of the complaint as
true," and "construe the facts and reasonable
inferences derived therefrom in the light most favorable to
the plaintiff." Ibarra v. United States, 120
F.3d 472, 474 (4th Cir. 1997). "Even though the
requirements for pleading a proper complaint are
substantially aimed at assuring that the defendant be given
adequate notice of the nature of a claim being made against
him, they also provide criteria for defining issues for trial
and for early disposition of inappropriate complaints."
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009). "The mere recital of elements of a cause of
action, supported only by conclusory statements, is not
sufficient to survive a motion made pursuant to Rule
12(b)(6)." Walters v. McMahen, 684 F.3d 435,
439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). To survive a motion to dismiss, the
factual allegations of a complaint "must be enough to
raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact)." Bell Atlantic Corp. v.
Jwombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). "To satisfy this standard, a plaintiff need
not 'forecast' evidence sufficient to prove the
elements of the claim. However, the complaint must allege
sufficient facts to establish those elements."
Walters, 684 F.3d at 439 (citation omitted).
"Thus, while a plaintiff does not need to demonstrate in
a complaint that the right to relief is 'probable,'
the complaint must advance the plaintiffs claim 'across
the line from conceivable to plausible.'"
Id. (quoting Twombly, 550 U.S. at 570). In
considering a Rule 12(b)(6) motion, the court does not always
have to limit its review to the pleadings. It can also take
judicial notice of public records, including statutes, and
can "consider documents incorporated into the complaint
by reference, as well as those attached to the motion to
dismiss, so long as they are integral to the complaint and
authentic." United States ex rel. Oberg v.
Pennsylvania Higher Educ. Assistance Agency, 745 F.3d
131, 136 (4th Cir. 2014) (citations and internal quotation
Ben Strong Trucking's Partial Motion to Dismiss
asks this court to dismiss, as a matter of law, three of the
counts brought against it in the complaint: (1) Count IV,
negligent infliction of emotional distress; (2) Count V,
intentional infliction of emotional distress; (3) Count VI,
well-established that Maryland law does not recognize an
independent claim for negligent infliction of emotional
distress. See Carson v. Giant Food, Inc., 187
F.Supp.2d 462, 482 (D. Md. 2002). The plaintiff argues that
this rule does not apply in situations where the source of
the alleged emotional distress also resulted in physical
injuries to the plaintiff (See ECF No. 15-1 at pp.
10-12.) Additionally, she offers to "amend/convert"
Count IV into a second negligence claim, should the court
find the existing NIED not to be cognizable alone.
rule surfaces from the extensive Maryland case law on this
precise question. While negligent infliction of emotional
distress is not a viable standalone claim under Maryland case
law, emotional distress can be recoverable as an element of
damages in a personal injury action. See Alban v.
Fiels, 210 Md.App. 1, 19 (2013). "[W]hen tortious
conduct causes a physical injury, the injured person may
recover damages for emotional distress attendant to the
physical injury." Exxon Mobil Corp. v. Ford,
204 Md.App. 1, 101 (2012); Hamilton v. Ford Motor Credit
Co., 66 Md.App. 46, 63 (1986) ("Recovery may be had
in a tort action for emotional distress arising out of
negligent conduct. In such case, the emotional distress is an
element of damage, not an independent tort.")
Accordingly, Count IV will be dismissed. The court notes that
the plaintiff has included claims for emotional distress in
her negligence count. Compl. ¶¶ 114-15.
Nevertheless, she may seek leave to amend the complaint if
counsel believes there is some need to replead the damages
plaintiff must satisfy four elements to sustain an IIED claim
in Maryland: (1) intentional or reckless conduct, that is
also (2) extreme and outrageous; (3) a causal connection
between the wrongful conduct and the emotional distress; and
(4) severe emotional distress. Harris v. Jones, 281
Md. 560, 566 (1977). The plaintiff argues that the shingles
shipment at issue was illegally double-brokered in violation
of the Federal Motor Carrier Safety Regulations and that this
act supplies the intentional or reckless extreme and
outrageous action needed to satisfy the first two prongs of
the IIED test. To sustain an IIED cause of action a plaintiff
must show that the defendant intended to cause the plaintiff
distress, knew that it was substantially certain that
distress (of the requisite magnitude) would result from a
given course of action, or acted recklessly in deliberate
disregard of a strong likelihood that emotional distress
would, result. Foor v. Juvenile Sews. Admin., 78
Md.App. 151, 175 (1989). In this case, any alleged unlawful
agreement to broker the shipment to a new carrier is far too
removed from the cause of the alleged emotional distress for
this claim to survive. The fact that the defendants may have
intended to do something improper unrelated (or
insufficiently related) to the accident has little bearing on
the plaintiffs IIED claim. There is no factual allegation
that any of the defendants intended the accident, that the
accident was substantially certain to occur, or that there
existed any sufficiently causal nexus between the allegedly
unlawful agreement to transfer carriers and the harm to the
plaintiff or J.L. See Id. Nor is this kind of
traffic accident, however tragic, the type of outrageous or
extreme conduct required in Maryland for an IIED claim to
proceed. See Alban, 210 Md.App. at 6. Even if all
the facts in the complaint are assumed to be true, the
plaintiff has failed to establish the first three elements of
an IIED cause of action. This claim will be dismissed.