Hernandez et al v. Dedicated TCS, LLC, et al

Filing 113

ORDER AND REASONS granting 94 Motion to Dismiss for Failure to State a Claim. The Stack Plaintiffs' claims against Defendant Dedicated TCS, LLC are DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 7/5/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOENDEL HERNANDEZ, ET AL.
Plaintiffs

CIVIL ACTION

VERSUS

NO. 16-3621

DEDICATED TCS, L.L.C., ET AL.
Defendants

SECTION: “E”(5)

ORDER AND REASONS
Before the Court is Defendant Dedicated TCS, LLC’s (“DTCS”) Rule 12(b)(6)
Motion to Dismiss the amended complaint filed by Demond Stack, Armond Burnett, Iesha
Burnett, Pamela Burnett, Nakita Stack, and Shenita Stack, individually and on behalf of
the Estate of Armond Stack (“Stack Plaintiffs”). 1 The Stack Plaintiffs oppose this motion. 2
For the following reasons, DTCS’ motion to dismiss is GRANTED.
BACKGROUND
On October 6, 2016, the Stack Plaintiffs filed their initial complaint against DTCS,
RST Insurance Company, Bulk Louisiana, UVW Insurance Company, Arkema, Inc. and
XYZ Insurance Company in the Civil District Court for the Parish of Orleans, State of
Louisiana. 3 DTCS filed a notice of removal in this district. 4 On April 4, 2017, the Court
granted DTCS’ ex parte motion to consolidate Stack Plaintiffs’ action with Hernandez v.
Dedicated TCS, LLC. 5 On April 11, 2017, the Stack Plaintiffs filed their First Supplemental
and Amended Complaint. 6

R. Doc. 94.
R. Doc. 95.
3 Case No. 17-cv-46, R. Doc. 1.
4 Id.
5 R. Doc. 72.
6 R. Doc. 81.
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2

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The consolidated actions arise out of an incident occurring on or about October 8,
2015. On that date, Joendel Hernandez, Anthony Duckworth and Armond Stack,
employees of DTCS, were assigned to clean an Arkema tank car at the facility operated by
DTCS at the Port of New Orleans. Plaintiffs allege that, although the tank car to be cleaned
contained hazardous and toxic chemical vapors, they were ordered to enter the tank car
without the protective equipment needed to ensure their ability to breathe. The
complaints allege that Joendel Hernandez, Anthony Duckworth and Armond Stack
immediately lost consciousness, and that Armond Stack eventually lost his life, as a direct
result of their exposure to hazardous vapors and their lack of oxygen in the tank car. The
Stack Plaintiffs specifically allege that the Occupational Safety and Health Administration
conducted an exhaustive investigation of the incident and concluded that the incident was
caused by the intentional acts of DTCS. 7 The Stack Plaintiffs allege that as a result of the
incident, Armond Stack lost his life and that the cause of death was identified as asphyxia
due to an oxygen deficient environment. 8
On March 3, 2017, the Court issued its Order and Reasons granting Defendant
DTCS’ Federal Rule of Civil Procedure 12(b)(6) motion to dismiss the claims brought
against it by Joendel Hernandez and Anthony Duckworth (“Hernandez Plaintiffs”) after
finding that the Hernandez Plaintiffs’ claims against DTCS were barred by the Louisiana
Workers’ Compensation Act (“LWCA”). 9
On May 30, 2017, Defendant DTCS filed a similar motion to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure arguing that the Stack Plaintiffs’

Case No. 17-cv-46, R. Doc. 1-8 at 4.
Id. at 3-4.
9 R. Doc. 58.
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claims against it are also barred by the LWCA. 10 On June 6, 2017, the Stack Plaintiffs filed
their opposition to DTCS’ motion to dismiss. 11
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief. 12 “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 13
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” 14 The court, however, does not accept as true legal conclusions or mere
conclusory statements, and “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.” 15 “[T]hreadbare
recitals of elements of a cause of action, supported by mere conclusory statements” or
“naked assertion[s] devoid of further factual enhancement” are not sufficient. 16
In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.” 17 “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not

R. Doc. 94.
R. Doc. 95.
12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
14 Id.
15 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
16 Iqbal, 556 U.S. at 663, 678 (citations omitted).
17 Twombly, 550 U.S. at 555.
10
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show[n]’—that the pleader is entitled to relief.” 18 “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’” 19
LAW AND ANALYSIS
I.

Plaintiffs Have Not Alleged a Claim Under The Intentional Act Exception to the
LWCA
Under Louisiana law, the exclusive remedy for an employee who is injured while

in the course and scope of his employment is the LWCA, unless the employee can prove
that the injury is the result of the employer’s “intentional act.” 20 The Louisiana Supreme
Court has held that “intentional act” in this context means “intentional tort.” 21 As the
Louisiana Supreme Court explained in Bazely, “The meaning of intent in this context is
that the defendant either desired to bring about the physical results of his act or believed
that they were substantially certain to follow from what he did.” 22 Stated differently,
“Intent is not, however, limited to consequences which are desired. If the actor knows that
the consequences are certain, or substantially certain, to result from his act, and still goes
ahead, he is treated by the law as if he had in fact desired to produce the result.” 23
The Stack Plaintiffs argue the Court’s reasoning in its March 3, 2017 Order and
Reasons does not apply equally to their complaint because they, unlike the Hernandez
Plaintiffs, have asserted facts demonstrating DTCS knew that the incident at issue was
substantially certain to follow from its conduct because DTCS had engaged in a pattern of
violating the same safety regulations and practices which led to Armond Stack’s death. 24
The Stack Plaintiffs allege that DTCS (1) failed to ensure that its employees were provided

Id. (quoting Fed. R. Civ. P. 8(a)(2)).
Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).
20 See La. Rev. Stat. §§ 23:1032(A), (B) (1990).
21 Bazely v. Tortorich, 397 So. 2d. 475, 482 (La. 1981).
22 Bazely, 397 So. 2d at 482.
23 Id. (citations omitted).
24 R. Doc. 95 at 4.
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respiratory protection equipment necessary to protect the health of each employee; (2)
failed to ensure that employees received a medical evaluation prior to implementing
respiratory protection for employees; (3) failed to ensure that employees had received a
fit test prior to initial respirator use; (4) failed to implement a written confined permit
space entry program; (5) failed to evaluate permit space conditions when entry operations
were conducted by testing conditions in the permit space to determine if acceptable entry
conditions existed before entry was authorized to begin; (6) failed to ensure that the
prospective rescue service was able to respond to the facility in a timely manner; (7) failed
to ensure that the prospective rescue service had been evaluated to determine their ability
to provide rescue from permit spaces maintained on site; (8) failed to prepare an entry
permit prior to an employee entering the railcar; (9) failed to ensure that an entry
supervisor verified the entry permit for a railcar before entry was allowed; and (10)
allowed employees to enter a permit space within a rail car without ensuring that they
were attached to a retrieval device or fixed point outside the railcar. 25 The Stack Plaintiffs
also allege that DTCS:
[I]ntentionally caused injuries to plaintiff, Armond Stack, by engaging in a
deliberate pattern of conduct wherein, based upon a long history of prior
similar incidents for which [DTCS] had been cited by investigating
authorities, and as a result of this prior history, [DTCS] knew that the
resulting injuries to its employee was substantially certain to follow from its
conduct in this matter[.] 26
Specifically, the Stack Plaintiffs allege that DTCS’ was aware, based on violations of the
pertinent OSHA requirements, “that the subject incident was substantially certain to
follow from its conduct.” 27

Case No. 17-cv-46, R. Doc. 1-8 at 4.
R. Doc. 81 at 6.
27 Id. at 16.
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The Court finds that, even accepting the allegations in the Stack Plaintiffs’
Complaint and Supplemental and Amending Complaint as true, the Stack Plaintiffs have
not sufficiently alleged a viable cause of action against DTCS under the intentional act
exception to the LWCA.
“The standard for prevailing on a claim of intentional tort under Louisiana law is
extremely high.” 28 As the Louisiana Supreme Court explained in Reeves v. Structural
Preservation Systems, Louisiana courts of appeal have “narrowly construed the
intentional act exception according to its legislative intent and have almost universally
held that employers are not liable under the intentional act exception for violations of
safety standards or for failing to provide safety equipment.” 29 As explained in Reeves,
“Believing that someone may, or even probably will, eventually get hurt if a workplace
practice is continued does not rise to the level of an intentional act, but instead falls within
the range of negligent acts that are covered by workers’ compensation.” 30
Establishing that a workplace injury resulted from an intentional act under the
LWCA requires evidence that the employer either (1) consciously desired the physical
result of his act, whatever the likelihood of that result happening from his conduct, or (2)
knew that result was substantially certain to follow from his conduct, whatever his desire
may have been as to the result. 31 Louisiana courts have explained that “[t]he phrase
substantially certain to follow means more than a reasonable probability that an injury
will occur.” 32 Other Louisiana courts have interpreted that “substantial certainty” is the

Roux v. Pinnacle Polymers, L.L.C., 2014 WL 129815, at *3 (E.D. La. Jan. 14, 2014).
731 So. 2d 208, 211-12 (La. 1999) (collecting cases).
30 Id. at 212.
31 See Moreau v. Moreau’s Material Yard, L.L.C., 98 So. 3d 297 (La. 2012).
32 See Gardner v. Graft, 137 So. 3d 69, 75 (La.App. 2 Cir.2014) (internal quotations and citations omitted).
28
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“equivalent to inevitable, virtually sure and incapable of failing.” 33 As the court in
Gardner explained:
Believing that someone may, or even probably will eventually get hurt if
workplace practice is continued does not rise to the level of an intentional
act, but instead falls within the range of negligent acts that are covered by
workers’ compensation. Neither knowledge and appreciation of a risk nor
reckless or wanton conduct by an employer constitutes an intentional
wrongdoing. Further, even if the alleged conduct goes beyond aggravated
negligence, and includes such elements as knowingly permitting a
hazardous work condition to exist, knowingly ordering a claimant to
perform an extremely dangerous job, or willfully failing to furnish a safe
place to work, this still falls short of the actual intention to injure that robs
the injury of accidental character. 34
The Stack Plaintiffs do not allege that DTCS consciously desired that Armond Stack
sustain his injuries. Instead they argue DTCS knew that the injuries were substantially
certain to follow from its conduct. The Stack Plaintiffs argue that over the course of three
years preceding this incident, DTCS and its managers were repeatedly reprimanded and
fined by OSHA for the very same confined-space entry violations that were violated here
and led to Armond Stack’s death. 35 The Stack Plaintiffs argue these continued violations
“all suggest that [DTCS] knew that the likelihood of injury was at the level of inevitability
required to establish an intentional tort.” 36 Although the Stack Plaintiffs do allege that
DTCS “knew that the subject incident was substantially certain to follow from its
conduct,” the court finds that this allegation is insufficient for the Court to draw the
reasonable inference that Armond Stack’s death was inevitable, virtually sure, and
incapable of failing to occur as a result of DTCS’ actions or actions.

33 Roux, 2014 WL 129815, at *3 (quoting King v. Schulykill Metals Corp., 581 So. 2d 300, 302 (La.App. 1st
Cir.1991)).
34 Gardner, 137 So. 3d at 75 (citations omitted).
35 R. Doc. 95 at 7.
36 Id. at 8.

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Even accepting the allegations in their complaint as true, the Court finds the Stack
Plaintiffs have not sufficiently alleged a claim that falls under the intentional tort
exception to the LWCA. Instead, the Stack Plaintiff’s complaint and amended complaint
include allegations of the kind Louisiana courts have found to be insufficient to establish
intentional tort liability under the LWCA. DTCS’ 12(b)(6) motion to dismiss for failure to
state a claim under the intentional act exception to the LWCA is granted.
CONCLUSION
For the abovementioned reasons, IT IS ORDERED that Defendant Dedicated
TCS, LLC’s Rule 12(b)(6) Motion to Dismiss 37 is GRANTED. The Stack Plaintiffs’ claims
against Defendant Dedicated TCS, LLC are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 5th day of July, 2017.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

37

R. Doc. 94.

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