Adams v. Lousiana-Pacific Corporation et al

Filing 59

MEMORANDUM OPINION AND ORDER: defendant's 35 motion for summary judgment is GRANTED IN PART AND DENIED IN PART; plaintiff's claim for breach of intended beneficiary contract is DISMISSED WITH PREJUDICE and defendant's 50 motion to strike is DENIED as more fully set out in order. signed by Judge Liles C Burke on 3/31/2020. (AHI)

FILED
2020 Mar-31 PM 03:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KENNETH ADAMS,
Plaintiff,
vs.
LOUISIANA-PACIFIC
CORPORATION, et al.,
Defendants.

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Civil Action No. 5:18-CV-00371-LCB

MEMORANDUM OPINION AND ORDER
Plaintiff, Kenneth Adams, originally filed his complaint in the Cullman
County Circuit Court on May 26, 2017, against his employer, Louisiana-Pacific
Corporation (“LP”) and fictitious party-defendants alleging two counts 1 under the
Alabama Workers’ Compensation Act, § 25–5–1 et seq., Ala. Code 1975, for
employment-related injuries.2 (Doc. 1-1, at 3-5). Plaintiff amended his complaint
on December 1, 2017,3 adding Cannon Cochran Management Services, Inc.
(“CCMSI”), 4 as a party-defendant and alleging additional counts against both LP
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Count one is alleged solely against LP under the Alabama Workers’ Compensation Act.
Count two alleges “any theories of law advanced in this complaint or in any amended complaints”
against fictitious party defendants. (Doc.1-1, at 5).
2
Plaintiff suffered injuries to his back and neck during a fall which occurred on October
12, 2016, while he was in the course of his employment with LP. Id. at. 3-4.
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(Doc. 1-2, at 2-8).
4
Defendant LP is self-insured and “engages CCMSI to administer worker’s compensation
claims on [its] behalf.” (Doc. 1-2, at 12) (alteration supplied).

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and CCMSI for outrage, intentional infliction of emotional distress, and breach of
intended beneficiary contract.5

Counts three and four were severed from the

workers’ compensation claims (counts one and two) by the state court and assigned
a new case number. 6 Thereafter on March 8, 2018, the severed case, consisting of
counts three and four, was removed7 and reassigned to this Court on October 17,
2018. (Docs. 1 and 21). On April 17, 2019, Plaintiff and his employer, LP, jointly
notified this Court that they had entered into a settlement, and all claims against LP,
were dismissed with prejudice, pro tanto, on April 18, 2019. (Doc. 29). The case is
currently before the Court on CCMSI’s motion for summary judgment (Doc. 35) and
a motion to strike (Doc. 50) certain evidence submitted by the Plaintiff in opposition
(Doc. 41) to CCMSI’s summary judgment motion. Upon consideration of the
pleadings, briefs, and evidentiary submissions, the Court enters the following
opinion and order.
I. STANDARDS OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and admissions on file,

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Count three alleges the tort of outrage and intentional infliction of emotional distress, and
count four is a claim for breach of intended beneficiary contract. (Doc. 1-2, at 2-8).
6
(Doc. 1-1, at 195.)
7
Removal is based upon complete diversity pursuant to 28 U.S.C. §§ 1332, 1441, and
1446.

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together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary
judgment always bears the initial responsibility of informing the court of the basis
for its motion and identifying those portions of the pleadings or filings which it
believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once
the moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and -- by pointing to affidavits, or depositions, answers to
interrogatories, and/or admissions on file -- designate specific facts showing that
there is a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are
irrelevant.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(“Anderson”). All reasonable doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. For Bibb Cty.,
495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted. See id. at 249.

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When faced with a “properly supported motion for summary judgment, [the
non-moving party] must come forward with specific factual evidence, presenting
more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th
Cir. 1997). As Anderson teaches, under Rule 56(c) a plaintiff may not simply rest on
her allegations made in the complaint; instead, as the party bearing the burden of
proof at trial, she must come forward with at least some evidence to support each
element essential to her case at trial. See Anderson, 477 U.S. at 252. “[A] party
opposing a properly supported motion for summary judgment ‘may not rest upon the
mere allegations or denials of [her] pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S.
at 322. “Summary judgment may be granted if the non-moving party’s evidence is
merely colorable or is not significantly probative.” Sawyer v. Sw. Airlines Co., 243
F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is

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‘whether the evidence presents a sufficient disagreement to require submission to
the jury or whether it is so one-sided that one party must prevail as a matter of law.”
Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477 U.S. at 251-52); see also
LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) (“The law is
clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
II. DISCUSSION
In the case at bar, Plaintiff concedes that defendant CCMSI is entitled to
summary judgment on his breach of intended beneficiary contact claim (Count Four)
by stating in his response that “[he] does not wish to pursue [this claim]” 8 and by
failing to present any opposition in his responsive brief.9 See S.O. Beach Corp. v.
Great Am. Ins. Co. of New York, 791 F. App'x 106, 112 (11th Cir. 2019) (plaintiff
waived argument by not presenting it in its brief before the court, citing Continental
Technical Services, Inc. v. Rockwell International Corp., 927 F.2d 1198, 1199 (11th
Cir. 1991) (per curiam) (“An argument not made is waived. . . .”)). For these
reasons, Plaintiff’s breach of intended beneficiary contract claim (Count Four) will
be dismissed.
With regard to Plaintiff’s remaining claim (Count Three) for outrage and
8
9

(Doc. 46, at 16 n.3)(alterations supplied)).
Id. at 1-34.

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intentional infliction of emotional distress,10 the Court finds that genuine disputes as
to material facts preclude the entry of summary judgment.
Accordingly, it is ORDERED that Defendant’s motion for summary
judgment (Doc. 35) is GRANTED in part and DENIED in part. Plaintiff’s claim
for breach of intended beneficiary contract (Count Four) is DISMISSED with
prejudice.

The case will proceed to trial on Plaintiff’s claim of outrage and

intentional infliction of emotional distress under Count Three. Further, Defendant’s
motion to strike (Doc. 50) is DENIED. The Court will enter a separate order setting
the case for a pretrial conference and trial.
DONE and ORDERED March 31, 2020.

_________________________________
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

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The Alabama Supreme Court recognizes that “[t]he tort of outrage encompasses both
intentional and reckless infliction of severe emotional distress.” Ex parte Lumbermen's
Underwriting All., 662 So. 2d 1133, 1134, n.1 (Ala. 1995) (citing American Road Service Co. v.
Inmon, 394 So.2d 361 (Ala.1980)).

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