Full title: TERRY AUVILLE, Plaintiff, v. B&B METALS, INC., et al., Defendants.
Court: UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD
Date published: Feb 23, 2016
Facts
The instant dispute arises from an automobile accident that occurred on United States Route 52 in Elkhorn, West Virginia. (Doc. No. 1, Exh. A at 3). On the morning of July 29, 2013, plaintiff was driving a 1995 Toyota Tacoma truck southbound on U.S. 52. Id. Defendant Marcum was just ahead of plaintiff, driving a 2011 Mack Truck Tractor, owned by his employer, defendant B&B Metals, Inc. Id. This stretch of roadway has only one lane in each direction, but widens to two lanes in either direction as Route 52 nears Elkhorn Station Road. Id.
As the two vehicles approached Elkhorn Station Road on their left, plaintiff alleges defendant Marcum steered his truck tractor towards the right lane, then attempted to turn left onto Elkhorn Station Road. Id. at 4-5. At the same time, plaintiff attempted to pass defendant Marcum’s truck tractor on the left, over an unbroken double-yellow line, crossing into the northbound lane of U.S. 52. (Doc. No. 1, Exh. A at 5; Doc. No. 16 at 2). The two vehicles collided, causing plaintiff’s truck to overturn approximately two to three times. (Doc. No. 1, Exh. A at 5). As a result of the accident, plaintiff contends that he suffered a number of injuries, including a stroke and continuing vision problems. (Doc. No. 1, Exh. A at 7; Doc. No. 16 at 2).
Senior Trooper J.K. Weiss of the West Virginia State Police responded to the accident. (Doc. No. 16 at 2). In his investigation, Senior Trooper Weiss determined that plaintiff did not yield the right-of-way, disregarded road markings, and improperly passed. (Doc. No. 16, Exh. B at 10). Senior Trooper Weiss further concluded that the actions of defendant Marcum did not contribute to the accident. Id. at 6.
Plaintiff filed a complaint in the Circuit Court of McDowell County, West Virginia, alleging negligence on the part of defendant Marcum and vicarious liability on the part of defendant B&B Metals, Inc. (Doc. No. 1, Exh. A). Defendants B&B Metals and Marcum removed the case to this court on February 18, 2015, invoking the court’s diversity jurisdiction. (Doc. No. 1). On December 23, 2015, defendants B&B Metals and Marcum moved this court for summary judgment. (Doc. No. 15). It appears that plaintiff does not contest this motion as he has not filed a response.
Issue
Decision
For the reasons stated above, defendants B&B Metals’s and Joseph Marcum’s motion for summary judgment, (Doc. No. 15), is GRANTED. Defendant West Virginia Department of Transportation Division of Highways is DISMISSED as a party to this case. The Clerk is DIRECTED to remove this case from the court’s docket.
The Clerk is further directed to send copies of this Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 23rd day of February, 2016.