Wisecup v. Aichi Forge USA, Inc.
Filing
12
MEMORANDUM OPINION & ORDER: IT IS ORDERED: That Defendant's 7 MOTION to Dismiss and/or MOTION for Summary Judgment is GRANTED and 2. that Defendant's 8 MOTION for Leave to File an attachment to its Memorandum in Support of its Motion to Dismiss and/or for Summary Judgment under seal is GRANTED. Signed by Judge Joseph M. Hood on 4/6/2018.(KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DANA WISECUP,
)
)
)
)
)
)
)
)
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)
Plaintiff,
v.
AICHI FORGE USA, INC.,
Defendant.
Civil Case No. 17-cv-07-JMH
MEMORANDUM OPINION & ORDER
***
This matter is before the Court upon Defendant’s Motion to
Dismiss and/or Motion for Summary Judgment [DE 7], which has
been fully briefed [DE 10, 11] and is ripe for consideration.1
With respect to Plaintiff’s three employment-related retaliation
claims
raised
in
this
action
against
Aichi
Forge
USA,
Inc.
(“Aichi”), Defendant argues that they are barred by a settlement
and
release
agreement
(the
"Agreement")
that
Plaintiff
voluntarily signed more than a year after the termination of her
employment.
agreement
She
was
objects
intended
compensation claim.
on
the
solely
grounds
to
that
resolve
the
her
settlement
workers’
After careful consideration of the facts
before this Court, the Court concludes that her claims should be
1
The Court has also considered and will grant Defendant’s Motion for Leave to
File an attachment to its Memorandum in Support of its Motion to Dismiss
and/or for Summary Judgment under seal [DE 8].
dismissed in light of the Agreement, and Defendant’s Motion will
be granted.
I.
Plaintiff
worked
for
Aichi
for
approximately
15
years.
(Complaint, ¶ 8). She filed a Charge of Discrimination with the
Kentucky
Commission
on
Human
Rights
in
May
2013,
settled around July 22, 2013. (Complaint, ¶ 26).
which
was
Then, she
suffered an injury to her shoulder while at work, on October 4,
2013. (Complaint, ¶ 11). She filed a workers' compensation claim,
(Complaint, ¶ 14), and took leave under the Family and Medical
Leave Act ("FMLA") until she exhausted her allotted leave in May
2014, at which time Aichi terminated her employment. (Complaint,
¶¶ 20-22).
Over a year later, on, July 22, 2015, Plaintiff signed an
Agreement, settling her workers' compensation claim and other
potential claims, as follows:
In exchange for this consideration, the
plaintiff agrees to waive and release the
defendant/employer from any and all claims
for liability arising out of the October 4,
2013 work injury. The plaintiff's waiver and
release includes, but is not limited to,
claims
for
additional
income/indemnity
benefits, vocational rehabilitation benefits,
additional medical benefits for any and all
treatment, and the right to reopen. Plaintiff
waives all claims, known or otherwise.
The ALJ entered an Order approving the Agreement on July 27,
2015.
In 2017, Plaintiff filed the three-count Complaint in this
matter, alleging retaliation under Title VII and the Kentucky
Civil
Rights
Act
("KCRA"),
FMLA
2
retaliation,
and
workers'
compensation retaliation in violation of KRS 342.197. (Complaint,
¶¶
25-37).
She
avers
that
Aichi
wrongfully
terminated
her
employment in retaliation against her for engaging in protected
activity under Title VII and the KCRA when she filed a Charge of
Discrimination with the Kentucky Commission on Human Rights in
May 2013. (Complaint, ¶ 26, 27). Plaintiff also avers that she
was prohibited from returning to work and subsequently terminated
and wrongfully retaliated against after using FMLA time in light
of her October 4, 2013 shoulder injury. (Complaint, ¶¶ 12, 20,
21, 30, 31). Finally, Plaintiff claims she engaged in protected
activity when she filed her workers' compensation claim following
her
October
2013
injury
and
was
subsequently
terminated
retaliation for her filing. (Complaint, ¶¶ 35-36).
II.
Under Kentucky law,
[a]n agreement to settle legal claims is
essentially a contract subject to the rules
of contract interpretation. It is valid if
it satisfies the requirements associated
with contracts generally, i.e., offer and
acceptance, full and complete terms, and
consideration. See, e.g., Hines v. Thomas
Jefferson Fire Ins. Co., Ky., 267 S.W.2d 709
(1953); Huff Contracting v. Sark, Ky.App.,
12 S.W.3d 704 (2000)(involving settlement of
claim to future medical benefits under
workers' compensation law); Old Republic
Ins. Co. v. Ashley, Ky.App., 722 S.W.2d 55
(1986)(same).
The
primary
object
in
construing
a
contract
or
compromise
settlement agreement is to effectuate the
intentions of the parties. See Withers v.
Commonwealth, Department of Transportation,
Ky.App., 656 S.W.2d 747, 749 (1983); Wilcox
v. Wilcox, Ky., 406 S.W.2d 152, 153 (1966).
“Any contract or agreement must be construed
3
in
as a whole, giving effect to all parts and
every word in it if possible.” City of
Louisa v. Newland, Ky., 705 S.W.2d 916, 919
(1986).
Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381,
384–85 (Ky. Ct. App. 2002)
[Only w]here a contract is ambiguous or
silent on a vital matter, a court may
consider
parol
and
extrinsic
evidence
involving
the
circumstances
surrounding
execution of the contract, the subject
matter of the contract, the objects to be
accomplished,
and
the
conduct
of
the
parties. See, e.g., Reynolds Metals Co. v.
Barker, Ky., 256 S.W.2d 17, 18 (1953);
Dennis v. Watson, Ky., 264 S.W.2d 858, 860
(1953); L.K. Comstock & Co., Inc. v. Becon
Const.
Co.,
932
F.Supp.
948,
965
(E.D.Ky.1993). Absent an ambiguity in the
contract, the parties' intentions must be
discerned from the four corners of the
instrument
without
resort
to
extrinsic
evidence. Hoheimer v. Hoheimer, Ky., 30
S.W.3d 176, 178 (2000); L.K. Comstock, 932
F.Supp. at 964. A contract is ambiguous if a
reasonable person would find it susceptible
to
different
or
inconsistent
interpretations. Transport Ins. Co. v. Ford,
Ky.App.,
886
S.W.2d
901,
905
(1994);
Luttrell v. Cooper Industries, Inc., 60
F.Supp.2d 629, 631 (E.D.Ky. 1998). The fact
that one party may have intended different
results,
however,
is
insufficient
to
construe a contract at variance with its
plain
and
unambiguous
terms.
Green
v.
McGrath, 662 F.Supp. 337, 342 (E.D.Ky.
1986). Generally, the interpretation of a
contract, including determining whether a
contract is ambiguous, is a question of law
for the courts and is subject to de novo
review.
First
Commonwealth
Bank
of
Prestonsburg v. West, Ky.App., 55 S.W.3d
829, 835 (2000); Morganfield Nat'l Bank v.
4
Damien Elder & Sons, Ky., 836 S.W.2d 893,
895 (1992); Fay E. Sams Money Purchase
Pension Plan v. Jansen, Ky.App., 3 S.W.3d
753, 757 (1999). However, once a court
determines that a contract is ambiguous,
areas of dispute concerning the extrinsic
evidence are factual issues and construction
of the contract become subject to resolution
by the fact-finder. See Cook United, Inc. v.
Waits, Ky., 512 S.W.2d 493, 495 (1974);
Reynolds Metals Co., supra; Lagrew v. Hooks–
SupeRx, 905 F.Supp. 401, 404 (E.D.Ky. 1995).
Id. at 385.
Both Plaintiff and Defendant argue that the Agreement is
clear
and
agrees.
unambiguous
and,
with
that
assessment,
the
Court
In light of the very different conclusions that the
parties urge, one must be disappointed.2
On the facts before
this Court, it will be Plaintiff because the Court agrees with
Aichi that, as a matter of law, the language is clear – the
waiver
of
any
and
all
claims
is
of
equal
dignity
with
the
settlement of the workers compensation claims themselves.3
2
Plaintiff argues that if the Court disagrees with her then the Agreement
must be ambiguous and there are facts from which a trier of fact could
conclude that the Agreement was not intended to be a waiver of any and all
claims arising from her employment with Defendant because it does not
reference charges of discrimination like the retaliation claim raised with
the Kentucky Commission on Human Rights on July 2, 2014, and which was
pending when her workers’ compensation claim was settled on July 22, 2015.
She argues that it is meaningful that the case before the KHRC remained open
until a right-to-sue letter was sent to her on October 6, 2016, stating that
“[t]he EEOC has adopted the findings of the state or local fair employment
practices agency that investigated this charge.” The Court is not persuaded.
3 The Court has also considered whether this might be comparable to a bodily
injury settlement agreement that purports to foreclose the possibility of a
bad faith claim against an insurer, which is not supported by Kentucky law.
The Court reasons that it is not because her retaliation claim was raised
with the Kentucky Commission on Human Rights on July 2, 2014, and was pending
when her workers’ compensation claim was settled on July 22, 2015.
5
Plaintiff takes the position that the settlement agreement
is limited in nature, “entered into for the sole purpose of
settling [her] workers’ compensation claim,” and not the global
settlement
of
any
and
all
possible
claims—including
her
discrimination claim—between the parties asserted by Defendant.
[DE 10 at 2, Page ID#: 54.]
She asks the Court to look at the
Agreement’s caption, which indicates that the settlement relates
to “Workers’ Compensation Claim No. 2013-64902,” and that, in
consideration
of
the
settlement
payment,
she
is
offering
“[w]aiver or buyout of future medical expenses,” “[w]aiver of
vocational rehabilitation,” and “[w]aiver of right to reopen.”
Plaintiff argues that there is no general waiver or release, for
example, any and all claims arising out of her employment with
Defendant,
nor
does
the
document
expressly
waive
retaliation
claims or any claims arising out of other unlawful employment
practices.
The Agreement states clearly, however, that, “[i]n exchange
for
this
release
consideration,
the
the
plaintiff
defendant/employer
from
any
agrees
and
to
all
waive
and
claims
for
liability arising out of the October 4, 2013[,] work injury. . .
“and that “Plaintiff waives all claims, known or otherwise.” Her
retaliation claims arise from Defendant’s decision to deny her
light
duty
and,
by
extension,
to
terminate
her
employment.
Defendant denied her light duty which she claims was necessary
6
as a result of her October 4, 2013, work injury.
There can be
no more obvious example of a claim arising out of that injury
than this.
While Plaintiff would have this Court limit the
application of the Agreement to those claims available expressly
under
the
worker’s
compensation
statute
by
virtue
of
the
proceeding where the settlement was reached and the caption on
the document, the Court cannot ignore that she elected to settle
“any and all claims” (emphasis added) arising out of her injury
and expressly “waive[d] all claims, known or otherwise.”
Defendant
Hoggard
v.
urges
Catch,
the
Court
Inc.,
Civil
to
follow
Action
the
No.
rationale
12-4783,
2013
in
WL
3430085, *5 (E.D. Pa. Jul. 9, 2013) (dismissing a subsequent ADA
claim
where
resolve[d]
the
all
workers’
claims
and
compensation
issues
agreement
arising
out
of
“completely
Claimant’s
05/11/2011 injury.”), and Canfield v. Movie Tavern, Inc., Civil
Action No. 13-cv-03484, 2013 WL 6506320, *3 (E.D.Pa. Dec. 12,
2013) (in which the agreement at issue
workers’
compensation
scarring
and
employment”).
specific
claims,
lost,
“resolve[d] any and all
including
arising
but
out
of
not
the
limited
to
claimant’s
The Court agrees that there is a distinction
between language that waives “any and all workers’ compensation
claims” and language that waives “any and all claims arising out
of” a workplace injury on a given date and that both must be
given their due. By doing so, the Court construes the agreement
7
“as a whole, giving effect to all parts and every word in it if
possible.”
City of Louisa v. Newland, 705 S.W.2d 916, 919 (Ky.
1986) (emphasis added)
Ultimately, the Court concludes that Plaintiff’s claim for
FMLA retaliation is barred in light of the waiver contained in
the settlement agreement: “the plaintiff agrees to waive and
release
the
liability
defendant/employer
arising
out
of
the
from
any
October
and
4,
all
2013
claims
work
for
injury.”
“Arising out of” has been interpreted to include all claims,
including related employment claims, predicated on the subject
of that phrase and is equivalent to “originating from,” growing
out of,” “flowing from,” or “done in connection with.”
See Fed.
Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 804 (10th Cir.
1998).
she
Here, had Plaintiff not been injured in October 2013,
would
have
retaliation.
had
no
grounds
whatsoever
for
the
claim
of
It is irrelevant that there is no specific mention
of employment, particularly as her employment had already been
terminated and these claims were already before the KCHR when
the Agreement was reached.
Summary judgment is appropriate.
See Fed. R. Civ. P. 12(d) (stating that the Court will treat a
motion to dismiss as a motion for summary judgment as a motion
for summary judgment where the movant presents documents outside
of the pleadings to support dismissal); Fed. R. Civ. P. 56(c)
(when ruling on a motion for summary judgment, "the judgment
8
should
be
rendered
forthwith
if
the
pleadings,
depositions,
answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
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) (court must enter summary judgment when the non-moving
party
"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.’’).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (non-movant
must establish the existence of "specific facts showing there is
a genuine issue for trial" to survive summary judgment).
Accordingly, IT IS ORDERED:
(1)
That Defendant’s Motion to Dismiss and/or Motion for
Summary Judgment [DE 7] is GRANTED and
(2) That Defendant’s Motion for Leave to File an attachment
to its Memorandum in Support of its Motion to Dismiss and/or for
Summary Judgment under seal [DE 8] is GRANTED.
This the 6th day of April, 2018.
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