Braase v. Battelle Energy Alliance, LLC

Filing 21

MEMORANDUM DECISION AND ORDER denying 11 Motion to Dismiss for Failure to State a Claim. Signed by Judge Edward J. Lodge. (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

STEVE BRAASE,
Case No. 4:14-CV-00481-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
BATTELLE ENERGY ALLIANCE,
LLC, organized in Delaware,
Defendant.

INTRODUCTION
Pending before the Court is Defendant Battelle Energy Alliance’s Motion to Dismiss.
(Dkt. 11.) The parties have filed their responsive briefing and the matter is ripe for the
Court’s consideration. Having fully reviewed the record herein, the Court finds that the facts
and legal arguments are adequately presented in the briefs and record. Accordingly, in the
interest of avoiding further delay, and because the Court conclusively finds that the
decisional process would not be significantly aided by oral argument, the Motion will be
decided on the record before this Court without oral argument.

MEMORANDUM DECISION AND ORDER- 1

BACKGROUND
Plaintiff Steve Braase is employed by Defendant Battelle Energy Alliance, LLC
(Battelle) as a Health Physicist Technician at the Idaho National Laboratory (INL).1 On
November 8, 2011, Mr. Braase was exposed to radioactive dust while repackaging
radioactive fuel plates during the course of his employment.2 Mr. Braase has brought this
action against Battelle seeking damages for the alleged injuries he suffered as a result of his
exposure to the radioactive material and the subsequent medical treatment rendered by
Battelle. The claims are made under the Price-Anderson Act (PAA) and various Idaho state
laws. (Dkt. 1.) Battelle has filed the instant Motion to Dismiss arguing Mr. Braase’s claims
fall within the exclusive jurisdiction of the Idaho Worker’s Compensation Act and, therefore,
this Court lacks subject matter jurisdiction. (Dkt. 11.) The Court finds as follows.
LEGAL STANDARD
Battelle’s Motion seeks dismissal under Federal Rule of Civil Procedure 12(b)(6)
arguing the Complaint fails to state a claim upon which relief can be granted. (Dkt. 11.) The
arguments made in the Motion, however, are that this Court lacks subject matter jurisdiction

1

Battelle operates the INL under a contract with the United States Department of

Energy.
2

Another employee of Battelle has filed a case raising similar claims arising from the
same accident in this District that is before Chief Judge B. Lynn Winmill: Simmons v.
Battelle Energy Alliance, LLC, Case No. 4:14-cv-00294-BLW. In that case, Chief Judge
Winmill has ruled upon a substantially similar Motion to Dismiss and has pending before him
a Motion to Consolidate these cases. (Case No. 4:14-cv-00481-EJL, Dkt. 15-17.)
MEMORANDUM DECISION AND ORDER- 2

over Mr. Braase’s claims. Accordingly, the Court will consider the Motion under Rule
12(b)(1) which applies to such challenges.
A Rule 12(b)(1) motion may be raised as either a facial or factual challenge to the
complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial
attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming
all the allegations are true and construing the complaint in the light most favorable to the
plaintiff. Id. When reviewing a facial challenge, the court is limited to the allegations in the
complaint, the documents attached thereto, and judicially noticeable facts. See Savage v.
Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). A factual
attack, on the other hand, does not assume the truth of a plaintiff’s allegations but instead
challenges them by introducing extrinsic evidence, requiring the plaintiff to support his
jurisdictional allegations with competent proof. See Leite v. Crane Co., 749 F.3d 1117, 1121
(9th Cir. 2014).
The Motion in this case raises a facial challenge. (Dkt. 11.) Therefore, the Court will
consider the allegations in the Complaint to be true when considering the sufficiency of those
allegations. See Safe Air for Everyone, 373 F.3d at 1039.
ANALYSIS
1.

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. Claims that are compensable under state or federal
worker’s compensation laws, however, cannot be brought under the PAA. 42 U.S.C.
MEMORANDUM DECISION AND ORDER- 3

§ 2014(w). “Generally, the Idaho worker’s compensation law provides the exclusive remedy
for injuries arising out of and in the course of employment.” Kearney v. Denker, 760 P.2d
1171, 1173 (Idaho 1988); see also Dominguez ex rel. Hamp v. Evergreen Res., Inc., 121 P.3d
938, 942 (Idaho 2005); and Idaho Code §§ 72-201, 72-211. An exception from the worker’s
compensation exclusivity rule exists “where the injury or death is proximately cause by the
wilful or unprovoked physical aggression of the employer, its officers, agents, servants or
employees.” Idaho Code § 72-209(3).
The parties in this case agree that in order for the exception to the exclusivity rule to
apply there must be some wilful or unprovoked physical aggression by the employer – such
as an offensive action or hostile attack – that proximately caused the employee’s injury. (Dkt.
13 at 11) (Dkt. 14 at 4-7.) Allegations of negligent conduct are insufficient. See DeMoss v.
City of Coeur d’Alene, 795 P.2d 875, 878 (Idaho 1990) (quoting Kearney, 760 P.2d at 1173).
The parties disagree, however, over whether the allegations raised in the Complaint make the
exception applicable in this case.
Battelle argues the personal injury claims raised in this case are exclusively covered
by Idaho’s Worker’s Compensation Laws because the event causing the injuries was an
“accident” occurring during and in the course and scope of employment. (Dkt. 14 at 2-3.)
Battelle relies upon the decisions in Kearney and DeMoss in support of its argument that the
Complaint fails to allege it acted with the requisite specific intent to cause injury to Mr.
Braase; i.e., that the Complaint’s allegations of negligent conduct are insufficient to raise

MEMORANDUM DECISION AND ORDER- 4

claims exempted from the exclusivity of the worker’s compensation laws. (Dkt. 14 at 4-8.)3
Mr. Braase disputes whether Battelle has shown his injuries were caused by an
“accident” and are therefore compensable exclusively under the worker’s compensation
statute. (Dkt. 13 at 5-10.) Mr. Braase likens this case to Dominguez, arguing the facts alleged
in the Complaint show Battelle’s wilful and unprovoked physical aggression based on
intentional conduct, not mere negligence. (Dkt. 13 at 11-16.)4 In particular, Mr. Braase points
to the allegations that the Battelle supervisors directed work to proceed despite knowing of
the danger of an airborne release of radioactive material and the workers’ questioning of
whether the repackaging process should proceed. Additionally, the Complaint alleges
Battelle failed to warn its employees of the known risks and danger of exposure and/or
provide protective equipment or proper safety procedures. These allegations, Mr. Braase
argues, demonstrate the wilful and unprovoked physical aggression necessary for the
exemption to apply. Battelle maintains that these allegations sound in negligence and do not

3

Kearney involved an employee whose foot was partially severed by a lawn mower
she was operating in the course of her employment. The employer in Kearney had not
installed certain safety devices on the lawn mower. In DeMoss, the employer directed the
employees to remove insulation material from a boiler which was later discovered to be
asbestos. In both cases, the Idaho Supreme Court concluded, on summary judgment, that the
employees had not shown any wilful or unprovoked physical aggression by their employers
and, therefore, the state tort claims were preempted by the Worker’s Compensation Act.
4

In Dominguez, the employer directed his employees to clean a steel tank which the
employer knew contained hazardous materials. The employer concealed its knowledge of the
danger and hampered the employee’s rescue and medical treatment. The Idaho Supreme
Court held that the worker’s compensation law was not the employee’s exclusive remedy;
i.e., that an employee can be eligible for worker’s compensation benefits and, at the same
time, pursue a cause of action for the employer’s intentional acts.
MEMORANDUM DECISION AND ORDER- 5

show the requisite intentional actions needed to fall within the exclusion to the exclusivity
rule of the worker’s compensation law. (Dkt. 11, 14.)
The Court has reviewed the allegations made in the Complaint in light of the parties’
arguments and the cases each side has cited. Having done so, the Court finds that at this stage
of the case the facts alleged, if true, are sufficient to show the exception to the worker’s
compensation exclusivity rule may apply. The Complaint contains the following allegations
specific to the PAA claims:
69.

Braase’s physical injury and/or sickness was caused by the willful or
unprovoked physical aggression of BEA and/or its employees who
intentionally ignored a known risk from the damaged fuel plates and
directed the work to proceed in spite of the known risks of exposure to
and inhalation of radioactive particles.

72.

BEA intentionally and recklessly exposed Braase to damaging
radioactive particles, which touched and entered his body, causing
radioactive injury and sickness.

73.

BEA also intentionally injected Braase with Ca-DTPA by puncturing
his skin with a needle and pumping a foreign substance into his veins.

MEMORANDUM DECISION AND ORDER- 6

78.

[Battelle] management of the ZPPR Facility knew about the hazards
associated with the repackaging of Pu fuel plates in finding damaged
fuel plates that could cause an airborne release of radioactive material
and took no necessary safety precautions to protect Braase.

79.

[Battelle]’s intentional conduct was a direct and proximate cause of
Braase’s injuries causing both actual present harm and creating an
increased risk of harm to his person, property, and economic interests.
Braase is entitled to recover damages for such injuries, including
general and compensatory damages.

(Dkt. 1.) These allegations go to show Battelle knew of the risks and dangers of encountering
the failed fuel plates when it ordered Mr. Braase to repackage and/or continue the
repackaging process, failed to warn Mr. Braase of the dangers, failed to follow federal safety
regulations, and intentionally and knowingly exposed Mr. Braase to radioactive particles.
(Dkt. 1 at ¶¶ 12-15, 20, 23, 25-26, 67-69.) If true, such allegations may establish that Mr.
Braase’s injuries were caused by the willful or unprovoked physical aggression of Battelle.
The allegations that Battelle knew of and concealed the danger and/or risk of exposure
distinguishes this case from DeMoss where the employer did not have actual knowledge that
the material was asbestos at the time the employees were directed to remove the material. See
DeMoss, 795 P.2d at 877-78. The Kearney case is also somewhat different because the
MEMORANDUM DECISION AND ORDER- 7

danger in that case was known to both the employee and employer. Kearney, 760 P.2d at
1172. The facts alleged in this case are closer to the facts in Dominguez where the danger
was known to the employer but unknown to the employees. The Complaint here alleges
Battelle instructed Mr. Braase to continue the repackaging process, even after the employees
expressed safety concerns, knowing of and concealing the dangers in doing so. Whether Mr.
Braase can ultimately prove Battelle’s conduct was wilful and unprovoked physical
aggression remains to be seen. On this Motion, the Court’s obligation is to examine the
allegations made in the Complaint and determine whether they are sufficient at this early
stage to raise claims over which this Court may have subject matter jurisdiction. Based on
the foregoing, the Court finds the Complaint here has done so.
2.

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, 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).
Counts II-IV of the Complaint raise claims for negligence per se, negligent infliction
of emotional distress, and breach of the duty of loyalty/fiduciary duty. (Dkt. 1 at ¶¶ 108-127.)
These claims are based on Battelle’s alleged duty to accurately document and calculate the
MEMORANDUM DECISION AND ORDER- 8

radiation dosage to which Mr. Braase was exposed under the accepted federal regulatory
standards. In response, Battelle argues the claims are barred by the Idaho’s Worker’s
Compensation Act because the duty alleged in the Complaint arises from the statutory duty
imposed under the Act upon Battelle to provide medical treatment to Mr. Braase. (Dkt. 11
at 22) (Dkt. 14 at 8-10.)
The Court has ruled above that the Complaint has, at least at this stage, alleged facts
which may give rise to the application of the exception to exclusivity rule of the Idaho
Worker’s Compensation Act. For the same reasons, the Court denies Battelle’s Motion to
Dismiss as to the claims stated in Counts II-IV.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED, that the Motion to Dismiss (Dkt.
11) is DENIED.
DATED: February 18, 2016

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER- 9