COA upholds dismissal of trucking company’s suit against employee in deadly crash

A Kentucky trucking company whose employee died in a fiery explosion while driving through Indiana cannot bring back to life its suit against the man and his wife, who was also in the crash, the Court of Appeals of Indiana has ruled.

BFD Enterprises, a trucking company operating out of Lewisport, Kentucky, hired Jeff Koepnick in August 2020 as a semitrailer driver and assigned him to drive a semi with a load of aluminum ingots from Lewisport to Kalamazoo, Michigan.

Accompanying him on the trip was Koepnick’s wife, Shamarie Schauer, who was required to sign a release of liability with BFD in order to do so.

However, the couple hit major trouble on the journey while driving through Huntington County, Indiana. Koepnick drove the semi straight into an overpass support pillar, causing the truck to catch fire and explode. The collision killed Koepnick, and Schauer was thrown from the vehicle but ultimately survived.

BFD later alleged that the couple had either brought alcohol with them on the journey or purchased alcohol during two brief stops they made along the way. It was later determined that Koepnick had a blood alcohol content of .168 at the time of the crash. Officers also recovered one empty whiskey bottle, a half-empty whiskey bottle and prescription medication bottles from the scene.

Filing suit in Indiana, BFD alleged that Koepnick and Schauer damaged the truck, that Schauer was liable pursuant to Indiana’s Dram Shop Act for furnishing alcohol to Koepnick after he was visibly intoxicated, and that Koepnick negligently operated the tractor-trailer resulting in the crash. It further alleged that Schauer and Koepnick should be held jointly and severally liable because they were engaged in a joint venture at the time of the accident.

Schauer filed her own suit in Kentucky, alleging that BFD was liable through the doctrine of respondeat superior for Koepnick’s negligence and that it negligently hired, retained, and supervised Koepnick.

While Schauer was able to effectuate service of her Kentucky suit on BFD, the trucking company struggled to effectuate service of its Indiana suit on Schauer due to confusion about her address.

By January 2021, BFD filed a motion to dismiss the Kentucky lawsuit on the basis of forum non conveniens, but Schauer’s counsel reported her correct address and maintained that Kentucky was an appropriate venue for Schauer’s suit. The Kentucky state court denied the motion to dismiss and BFD’s subsequent appeal.

Meanwhile, BFD amended its complaint to add a count seeking indemnification from Schauer and Koepnick for any claims Schauer may have against BFD because of the accident. It finally served Schauer at the correct address, but the Huntington Circuit Court dismissed the Indiana lawsuit.

The Court of Appeals of Indiana affirmed, finding that the principal of comity supports the dismissal of the Indiana lawsuit.

“Even though the Indiana Lawsuit was filed five days before the Kentucky Lawsuit, the Kentucky Lawsuit is further along than the Indiana Lawsuit because of BFD’s delay in serving Schauer,” Judge Melissa May wrote. “As the trial court noted in its order granting Schauer’s motion to dismiss, the Kentucky state court obtained jurisdiction over Schauer and BFD months before the Indiana state court did.”

The COA further noted that although BFD argues the parties in both suits are not the same because Koepnick is named in the Indiana lawsuit but not the Kentucky lawsuit, both suits involve Schauer and BFD asserting claims for damages against each other stemming from the accident.

“Allowing both suits to proceed creates a risk of inconsistent results,” the COA wrote. “In addition, Trial Rule 4.4(C) supports dismissing the Indiana Lawsuit on the basis Kentucky is a more convenient forum. Schauer is a Kentucky resident and initiated suit in Kentucky. BFD is likewise a Kentucky corporation, and BFD designates Kentucky as the preferred forum in the release of liability it requires of passengers. Consequently, BFD cannot sincerely assert it is uncomfortable litigating in Kentucky.”

The case is BFD Enterprises, LLC v. Jeff Koepnick and Shamarie Schauer, 21A-CT-1931.

This article was first published in The Indiana Lawyer.

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