Simmons v. Battelle Energy Alliance, LLC

Filing 19

MEMORANDUM DECISION AND ORDER denying 15 Motion to Dismiss. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BRIAN SIMMONS,
Case No. 4:14-cv-00294-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
BATTELLE ENERGY ALLIANCE,
LLC,
Defendant.

INTRODUCTION
Pending before the Court is Defendant Battelle Energy Alliance’s motion to
dismiss. The motion is fully briefed and at issue. For the reasons explained below, the
Court will deny the motion.
BACKGROUND
Plaintiff Brian Simmons is a nuclear operator employed by Battelle. On
November 8, 2011, Simmons was exposed to radioactive dust while repackaging
radioactive fuel plates at Battelle’s facility. He sued Battelle, claiming that he was
injured by the exposure and the subsequent medical treatment rendered by Battelle. He
has made claims under the Energy Reorganization Act (ERA), the Price-Anderson Act
(PAA), and various Idaho state laws.
Battelle responded by filing the motion to dismiss now before the Court.
Although Battelle brings its motion under Rule 12(b)(6), the motion actually rests on the

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argument that the Court lacks subject matter jurisdiction to hear some of Simmons’
claims. See Battelle’s Brief (Dkt. No. 15-1) at pp. 1-3. As a result, the Court will
consider the motion as a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction.
In its motion, Battelle contends that Simmons’ exposure was the result of a typical
industrial accident and that the factual allegations are insufficient to sustain a claim under
the PAA because the claims fall under the exclusive jurisdiction of Idaho’s worker’s
compensation system. Id. at 3. In addition, Battelle asserts that Simmons’ state-law
claims arise under Idaho’s worker’s compensation laws and, therefore, the Court lacks
subject matter jurisdiction to hear those claims. Id. at 15.
LEGAL STANDARD
A defendant may move to dismiss a complaint for lack of subject matter
jurisdiction under Rule 12(b)(1) in one of two ways. See Leite v. Crane Co., 749 F.3d
1117, 1121 (9th Cir. 2014). The first is known as a “facial” attack, and it accepts the
truth of the plaintiff’s allegations but asserts that they are insufficient on their face to
invoke federal jurisdiction. Id. The second method is known as a “factual” attack, and it
does not assume the truth of plaintiff’s allegations but instead challenges them by
introducing extrinsic evidence, requiring the plaintiff to support his jurisdictional
allegations with “competent proof.” Id.
In its motion, Battelle assumes that the allegations in the amended complaint are
true, but challenges the sufficiency of those allegations. See Battelle Brief, supra at p. 2.

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Therefore, the Court will treat the motion as a facial challenge to the Court’s subject
matter jurisdiction.
ANALYSIS
PAA Claim
The PAA provides a federal right of action for individuals injured by a nuclear
incident. See 42 U.S.C. §§ 2014(w); 2210. However, claims that are compensable under
state or federal worker’s compensation laws cannot be brought under the PAA. Id.
“Idaho's worker's compensation laws provide the exclusive remedy of an employee
against his employer for injuries arising out of and in the course of employment.” Baker
v. Sullivan, 979 P.2d 619, 622 (Idaho 1999) (Internal quotations omitted). However,
injuries that result from the willful or unprovoked physical aggression of the employer
are exempted from this exclusivity rule. Dominguez ex rel. Hamp v. Evergreen Res., Inc.,
121 P.3d 938, 942 (Idaho 2005).
In Dominguez, Allan Elias ordered two of his employees to clean a 25,000-gallon
tank filled with cyanide-laced sludge. Id. Even though Elias knew cleaning the tank was
extremely dangerous and would injure his employees, Elias did not warn either of them.
Id. Contrary to federal regulations, no permit had been prepared, there had been no
special employee training, appropriate safety equipment was not provided, and no
attendant was standing by. Id. The employees were subsequently injured by the toxic
fumes and Elias was uncooperative with emergency personnel. Id. at 941. The Idaho
Supreme Court ruled that Dominguez, one of the employees, “alleged a willful or

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unprovoked physical aggression by his employer, and therefore his claim falls into a
statutory exception to the exclusive remedy rule.” Id. at 943. Therefore, Dominguez
stands for the proposition that an employer acts with willful or unprovoked physical
aggression when the employer intentionally orders an employee to perform an act that the
employer knows will injure the employee.
The facts alleged in Simmons’ amended complaint are substantially similar to
those recited in Dominguez. Simmons’ alleges, among other things, that Battelle knew
that ordering Simmons to repackage the fuel plate would result in Simmons’ injury, failed
to warn Simmons of the danger, failed to follow federal safety regulations, and
intentionally exposed Simmons to radioactive particles. See Amended Complaint (Dkt.
No. 3) at ¶¶ 22, 91, & 106. Given the similarity between the facts alleged in Dominguez
and the facts alleged in the amended complaint, the Court holds that the amended
complaint alleges that Simmons’ injuries were caused by the willful or unprovoked
physical aggression of Battelle. As a result, the worker’s compensation exception to the
PAA does not apply and the Court has subject matter jurisdiction over Simmons
corresponding claims.
State Law Claims
“If there is any provision under the worker’s compensation law under which the
alleged claim could be said to arise, the Commission has exclusive jurisdiction.” Walters
v. Indus. Indem. Co. of Idaho, 908 P.2d 1240, 1242 (1996). However, “allegations of
separate torts, wholly distinct from Idaho’s worker’s compensation statutory scheme,

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may give rise to jurisdiction of Idaho state courts outside the exclusive jurisdiction of the
Idaho Industrial Commission.” Selkirk Seed Co. v. State Ins. Fund, 22 P.3d 1028, 1030
(Idaho 2000) (Internal quotations omitted).
In counts III-V of the amended complaint, Simmons alleges that Battelle is liable
for negligence per se, negligent infliction of emotional distress, and breach of fiduciary
duty. See Amended Complaint, supra at ¶¶ 130-149. Simmons bases these claims on
Battelle’s alleged duty under federal law to calculate the dosage of radiation to which
Simmons was exposed. Id. Battelle responds that it also owed a duty under Idaho’s
worker’s compensation laws to provide medical treatment to Simmons and, therefore,
Simmons’ claims arise under Idaho’s worker’s compensation law. But the Court has just
held that Simmons’s allegations at least raise a question whether the physical aggression
exception applies. That is sufficient to deny Battelle’s motion at this stage in the
litigation.

ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to dismiss
(docket no. 15) is DENIED.

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DATED: July 30, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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