Remedies v. Advanced Emissions Solutions, Inc, et al

Filing 76

MEMORANDUM RULING re 55 MOTION for Summary Judgment filed by Advanced Emissions Solutions Inc. IT IS ORDERED that AES's motion for summary judgment is GRANTED. All Remedies's claims filed against AES are DISMISSED.A judgment consistent with the instant Memorandum Ruling shall be issued herewith. Signed by Judge Donald E Walter on 1/27/2025. (crt,Enkey, R)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
______________________________________________________________________________
ROBERT REMEDIES

CIVIL ACTION NO. 23-454

VERSUS

JUDGE DONALD E. WALTER

ADVANCED EMISSIONS SOLUTIONS INC.
MAGISTRATE JUDGE MCCLUSKY
ET AL.
______________________________________________________________________________
MEMORANDUM RULING
Before the Court is a motion for summary judgment filed by Defendant Advanced
Emissions Solutions Inc. (“AES”). See Record Document 55. In response, Plaintiff Robert
Remedies (“Remedies”) filed an opposition, and AES replied. See Record Documents 66 and 68.
For the reasons stated below, AES’s motion for summary judgment (Record Document 55) is
GRANTED.
BACKGROUND
This is a workplace injury case. On April 22, 2021, Remedies was an employee of ADA
Carbon Solutions Red River LLC (“ADA”) and was injured in a fire at ADA’s plant in Coushatta,
Louisiana (“ADA’s Plant”), while in the course and scope of his employment. See Record
Documents 55-4 at 14 and 74 at 4. Remedies filed suit against both ADA and AES. 1
ADA is a Delaware company with its principal place of business in Coushatta, Louisiana.
See Record Document 55-5 at 2. AES is a Delaware corporation founded in 1996 and

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ADA also filed a motion for summary judgment, and Remedies opposed the motion. See Record
Documents 58 and 65. Remedies adopted and incorporated the exhibits attached to Record
Document 65 filed with this Court in accordance with Rule 10(c). See Fed. R. Civ. P. 10(c).

headquartered in Greenwood Village, Colorado. See Record Document 55-6 at 3. AES is the parent
company of ADA. See Record Document 55-5 at 2.
AES operates as a parent company, and its subsidiaries provide various emission and
purification solutions to the power generation, industrial boiler, and municipal water industries.
See id. As a parent company, AES directs long-term strategy and allocation of capital resources
on behalf of its subsidiaries. See Record Document 55-5 at 4. AES’s subsidiaries are registered as
distinct corporate entities, and they are registered to do business in the states and/or foreign
countries where they operate. See Record Document 55-6 at 2. ADA controls its employees’ work
output, pays its employees, and trains its employees on how to perform their jobs safely. See
Record Documents 55-5 at 2 and 55-7 at 2.
According to AES’s Chief Technology Officer, Joe Wong (“Wong”), “AES does not and
never has exercised control over the day-to-day management or operations of its subsidiaries,
including ADA.” Record Document 55-5 at 2. On the day of the injury, 2 ADA’s management team
controlled the safety, supervision, and management of ADA’s employees at ADA’s Plant. See id.
at 3. ADA was responsible for the safety of its employees, including Remedies at the time of his
workplace injury. See id. Further, on April 22, 2021, AES did not instruct ADA leadership nor any
ADA employee on how to run the day-to-day activities at ADA’s Plant or how to perform work.
See id. at 2.
ADA’s Vice President of Manufacturing, Dennis Sewell (“Sewell”), testified that “daily
safety briefings were conducted by ADA supervisors[,]” and “safety policies and procedures were
developed and maintained by ADA and not AES.” Record Document 55-7 at 2. Wong confirmed

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A more detailed account of the facts can be found in the Court’s ruling (Record Document 76)
on ADA’s motion for summary judgment (Record Document 58).
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that ADA maintains and develops its own safety policies, procedures, and Occupational Safety
and Health Administration (“OSHA”) logs that are separate and apart from AES. See Record
Document 55-5 at 4.
On May 24, 2024, Remedies filed a motion to amend his complaint. See Record Document
72. This Court granted his motion. See Record Document 73. In his amended complaint, Remedies
alleges both negligence and intentional tort claims against AES. See Record Document 74 at 5-8.
Remedies alleges that AES is liable for its own allegedly negligent conduct in failing to ensure the
safety of ADA’s Plant, failing to ensure ADA’s Plant was free of defects, and failing to protect
workers, like Remedies, from unsafe conditions. See id. Furthermore, Remedies contends that
there are “genuine issues of material fact as to whether AES’s conduct rises to the level of an
intentional tort under the ‘substantial certainty’ standard.” Record Document 66 at 14. On April
12, 2024, AES filed this motion for summary judgment, arguing that AES did not owe a duty to
Remedies and that its conduct did not rise to the level of an intentional tort. See Record Documents
55-2 and 68.
LAW AND ANALYSIS
A. Summary Judgment Standard.
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil Procedure
when “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Quality Infusion Care, Inc. v. Health Care Serv. Corp., 628 F.3d 725, 728 (5th
Cir. 2010). A fact is “material” if proof of its existence or nonexistence would affect the outcome
of the lawsuit under applicable law in the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 2510 (1986). A dispute about a material fact is “genuine” if the evidence is
such that a reasonable fact finder could render a verdict for the nonmoving party. See id. “[A] party

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seeking summary judgment always bears the initial responsibility of informing the district court
of the basis of its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact by pointing out that the record contains
no support for the non-moving party’s claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.
Ct. 2548, 2553 (quoting Fed. R. Civ. P. 56(c)).
B. Louisiana Negligence Claims.
As previously mentioned, Remedies alleges that AES is liable for its own allegedly
negligent conduct in failing to ensure the safety of ADA’s Plant, failing to ensure ADA’s Plant was
free of defects, and failing to protect workers, like Remedies, from unsafe conditions. See Record
Document 74 at 5-8. Subject matter jurisdiction in this matter is based on diversity. Thus, Louisiana
tort law applies. See Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938) (holding that a
federal court sitting in diversity jurisdiction applies the substantive law of the forum state). The
first inquiry is whether AES owed any duty to Remedies. A parent corporation generally does not
incur any duty with respect to the employees of its subsidiaries by the mere fact of its ownership.
See Bujol v. Entergy Servs., Inc., 922 So.2d 1113, 1127 (La. 2004). “Additionally, a parent
corporation is not responsible for the working conditions of its subsidiary’s employees merely on
the basis of a parent-subsidiary relationship.” Stanley v. Airgas-Sw., Inc., 2016-0461, 2017 WL
1807984, at *4 (La. App. 1 Cir. 5/4/17) (citing Bujol, 922 So.2d at 1132).
“Under Louisiana law, one who does not owe a duty to act may assume such a duty by
acting.” Hebert v. Rapides Par. Police Jury, 974 So.2d 635, 643 (La. 2007). To determine whether
defendants like AES owe a duty to the employees of their subsidiaries, Louisiana courts apply

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Section 324A of the Restatement (Second) of Torts. See Bujol, 922 So.2d at 1128. Section 324A
provides,
One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of a third person or his
things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect [perform] his undertaking, if
(a) his failure to exercise reasonable care increases the risk of harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the
undertaking.
Id. (quoting Restatement (Second) of Torts § 324A). “Although the existence of a duty is a question
of law for the Court, the factual predicates for the imposition of that duty are a question for the
fact finder.” Morvant v. Oil States Int’l, Inc., 3 F. Supp. 3d 561, 565 (E.D. La. 2014) (citing Johnson
v. Abbe Eng’g Co., 749 F.2d 1131, 1133-34 (5th Cir.1984)).
In Bujol, two men were severely injured and one was killed when a flash fire occurred
during valve maintenance at an air separation plant. See Bujol, 922 So.2d at 1120. The employer
paid workers’ compensation benefits, but the plaintiffs sued the parent corporation for failure to
supervise the facility, failure to prescribe proper procedures, and punitive damages. See id. at 112021. The plaintiffs alleged that the accident could have been prevented if the victims had used
“barrier walls” as a shield from a possible fire. Id. at 1121-22.
The Louisiana Supreme Court in Bujol followed the analytical framework of Section 324A
of the Restatement and stated, “In determining whether a parent corporation affirmatively
undertook the duty of safety owed by its subsidiary, courts have looked to the scope of the parent's
involvement, the extent of the parent's authority, and the underlying intent of the parent . . . .” Id.
at 1131. The Louisiana Supreme Court further noted that, under Louisiana jurisprudence, “parties

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who voluntarily assume certain duties for workplace safety must perform those duties in a
reasonable and prudent manner.” Id. at 1129. To find that the parent company assumed the duty,
the Louisiana Supreme Court required “some proof of a positive undertaking” for workplace
safety, stating that “[n]either mere concern with nor minimal contact about safety matters creates
a duty to ensure a safe working environment for employees of a subsidiary corporation.” Id. at
1131 (citing Muniz v. Nat’l Can Corp., 737 F.2d 145, 148 (1st Cir. 1984)). “[N]either a parent’s
concern with safety conditions and its general communications with the subsidiary regarding
safety matters, nor its superior knowledge and expertise regarding safety issues, will create in the
parent corporation a duty to guarantee a safe working environment for its subsidiary's employees
under [Section] 324A.” Id. at 1133.
In Bujol, the evidence revealed that the parent corporation issued a non-mandatory safety
recommendation to some of its subsidiaries with respect to the use of barrier walls. See id. at 113334. Each subsidiary had the choice of whether to follow the safety recommendation. See id. at
1134. After reviewing the evidence, the Louisiana Supreme Court reversed the jury’s findings and
held that “the evidence presented did not establish that [the parent corporation] affirmatively
undertook to provide [the subsidiary]’s employees with a reasonably safe place to work under
[Section] 324A, with regard to the entire plant or with regard to providing barrier walls around
oxygen valves.” Id. at 1133.
In Morvant, an employee was tragically killed in a workplace accident while fabricating a
“501 wall.” Morvant, 3 F. Supp. 3d at 563. The employee worked for Oil States Skagit Smatco
L.L.C. (“OSSS”). See id. The surviving spouse and children of the employee brought claims
against two parent companies of OSSS—Oil States Industries, Inc. (“OSI”) and Oil States
International, Inc. (“International”)—for their alleged negligence in “failing to adequately manage,

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supervise, and direct their subsidiary in the performance of its operations and/or implement
corporate safety policies.” Id. at 564. The Eastern District of Louisiana reached two different
outcomes for the parent companies based on the evidence. See id. at 569-70.
The evidence revealed that “OSI provided a detailed safety management system which
specifically mentioned crushing as a potential hazard, required that these standards be used across
all OSI subsidiaries, conducted periodic audits of OSSS, and collected monthly [health, safety, and
environmental] documentation.” Id. at 569 (internal citations omitted). Additionally, OSI also had
control over the health, safety, and environmental policies at OSSS, the safety management system
that is in place at OSSS displayed the OSI logo on the cover and OSI’s name on every page, and
OSI “participated in all aspects of the safety management system, indicating its intent to be closely
involved with the safety policies of its subsidiaries.” Id. Therefore, the court denied the motion for
summary judgment in part and found that the plaintiffs raised a genuine issue of material fact with
respect to whether OSI affirmatively undertook a duty of safety regarding OSSS’s employees. See
id.
In contrast, the court found that no duty was owed to the employee by the other parent
company, International. See id. at 570. The evidence revealed uncontroverted testimony that
International had no involvement with any safety matters at OSSS. See id. The only evidence
produced with respect to International was a document relating to disciplinary procedures for all
employees and did not pertain to health, safety, and environmental issues. See id. Therefore, the
court granted the motion for summary judgment in favor of International. See id.
Here, Remedies was an employee of ADA. See Record Document 55-4 at 14. He was never
an employee of AES. See id. AES employees evaluate long-term strategy and the allocation of
capital resources on behalf of AES’s subsidiaries. See Record Document 55-5 at 2. ADA controls

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its employees’ work output, pays its employees, and trains its employees on how to perform their
jobs safely. See Record Documents 55-5 at 2 and 55-7 at 2. It is undisputed that “AES does not
and never has exercised control over the day-to-day management or operations of its subsidiaries,
including ADA.” Record Document 55-5 at 2. On the day of the injury, ADA’s management team
controlled the safety, supervision, and management of ADA’s employees at ADA’s Plant. See id.
Wong testified that ADA was responsible for the safety of its employees, including Remedies at
the time of his workplace injury. See id. at 3.
Wong further testified that “AES did not instruct ADA leadership nor any ADA employee
. . . how to run the day-to-day activities at ADA’s [Plant] or how to perform work in connection
therewith.” Id. at 2. Furthermore, Sewell testified that “daily safety briefings were conducted by
ADA supervisors[,]” and “safety policies and procedures were developed and maintained by ADA
and not AES.” Record Document 55-7 at 2. Wong confirmed that ADA maintains and develops its
own safety policies, procedures, and OSHA logs that are separate and apart from AES. See Record
Document 55-5 at 4. Remedies failed to produce any evidence to contradict these facts. 3 Therefore,
no genuine issue of material fact exists as to whether AES affirmatively undertook a duty of safety
regarding ADA’s employees. After reviewing all of the evidence, the Court finds that no duty was
owed to Remedies by AES.
B. Louisiana Workers’ Compensation Law.
Next, Remedies contends that he is entitled to additional damages for AES’s intentional
act. An employee’s remedy for workplace injuries is generally only the receipt of benefits under
the Louisiana Workers’ Compensation Act. See La. R.S. 23:1032. However, the exclusive remedy

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In his opposition, Remedies relies to the alleged testimony of Sewell’s; however, such testimony
is not in the record. See Record Document 66 at 9-10. AES raised this issue in its reply. See Record
Document 68 at 6. Remedies failed to request leave to cure this defect.
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provision contained in Section 1032 includes a narrow exception for intentional acts committed
by the employer. See La. R.S. 23:1032(B). It is undisputed that Remedies received workers’
compensation benefits as a result of being injured in the fire while in the course and scope of his
employment with ADA. Therefore, to recover any additional damages, Remedies must prove that
his injuries were the result of an intentional act by AES or its employees.
“The plaintiff’s burden for showing the elements of an employer’s intentional act within
the meaning of the statutory exception is exacting, and Louisiana courts, as well as federal courts
sitting in diversity, have consistently noted that the intentional act exception is to be narrowly
interpreted.” Chiasson v. Hexion Specialty Chems., Inc., No. 11-0959, 2012 WL 3683542, at *6
(E.D. La. Aug. 27, 2012) (citations omitted); see, e.g., Reeves v. Structural Pres. Sys., 731 So. 2d
208, 211-12 (La. 3/12/99); Hodges v. The Mosaic Co., No. 05-5201, 2007 WL 2008503, at *4
(E.D. La. July 6, 2007); Cole v. State Dept. of Pub. Safety & Corr., 825 So. 2d 1134, 1140 (La.
9/4/02). The Supreme Court of Louisiana has mandated that “an intentional act requires that the
actor either (1) consciously desires the physical result of his act, whatever the likelihood of that
result happening from his conduct, or (2) knows that the result is substantially certain to follow
from his conduct, whatever his desire may be as to that result.” Carrier v. Grey Wolf Drilling Co.,
776 So. 2d 439, 441 (La. 1/17/01). “‘Substantially certain to follow’ requires more than a
reasonable probability that an injury will occur and ‘certain’ has been defined to mean ‘inevitable’
or ‘incapable of failing.’” Reeves, 731 So. 2d at 213 (quoting Jasmin v. HNV Cent. Riverfront
Corp., 642 So. 2d 311, 312 (La. App. 4 Cir. 8/30/94).
“[M]ere knowledge and appreciation of a risk does not constitute intent, nor does reckless
or wanton conduct by an employer constitute intentional wrongdoing.” Reeves, 731 So.2d at 213.
The Louisiana Supreme Court has made clear that “[e]ven if the alleged conduct goes beyond

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aggravated negligence, and includes such elements as knowingly permitting a hazardous work
condition to exist, knowingly ordering claimant to perform an extremely dangerous job, or
willfully failing to furnish a safe place to work, this still falls short of the kind of actual intention
to injure that robs the injury of accidental character.” Id. at 211. Additionally, “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. . . .” Carrier, 776 So. 2d at 441-42 (internal quotation
omitted). The standard for prevailing on a claim of intentional act under Louisiana law is
“extremely high.” Wilson v. Kirby Corp., No. 12-0080, 2012 WL 1565415, at *2 (E.D. La. May 1,
2012).
Remedies contends that the evidence suggests that “AES was aware of the safety issues at
[ADA’s Plant], including the need for engineering controls like nitrogen injection systems to
mitigate the risk of explosions[,]” and “[a] jury could reasonably conclude that AES knew that an
explosion was ‘going to happen; it’s just a matter of time’ due to its failure to address the known
safety hazards at the plant.” Record Document 66 at 14. Remedies relies on the opinion of his
petroleum engineer expert, Eugene Sweeney (“Sweeney”), who stated that “the most effective way
to mitigate the risk that resulted in this incident is to use engineering controls in combination with
very systematic administrative controls (policies and procedures).” Record Document 65-4 at 16.
Sweeney further opined that one of the controls that should have been implemented was the
nitrogen injection system. See id.
The evidence demonstrates that AES neither consciously desired nor had substantial
certainty that the injury at ADA’s Plant would occur. AES never exercised control over the dayto-day management or operations of ADA. See Record Document 55-5 at 2. On the day of the
injury, ADA controlled the safety, supervision, and management of ADA’s employees at ADA’s

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Plant—not AES. See id. at 3. AES did not instruct ADA leadership nor any ADA employee on
how to run the day-to-day activities at ADA’s Plant or how to perform their work. See id. at 2. The
daily safety briefings, including the one that took place on the day of the injury, were conducted
by ADA supervisors. See id. at 3. There is no evidence to contradict that ADA maintained and
developed its own safety policies, procedures, and OSHA logs that were separate and apart from
AES. See Record Document 55-5 at 4. Therefore, no genuine issue of material fact exists to AES’s
role in the safety, supervision, and management of ADA’s employees at ADA’s Plant. Without
control over ADA’s safety policies, daily operations, or employee supervision, AES could not
foresee or ensure the likelihood of any specific outcome related to ADA’s activities. The
uncontroverted evidence does not show that AES knew with substantial certainty that any harm
would follow from its conduct. Furthermore, there is no evidence indicating that AES consciously
desired the injury or any physical harm to occur at ADA’s Plant. After reviewing all of the
evidence, the Court finds that AES’s conduct did not rise to the level of an intentional tort.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that AES’s motion for summary judgment
(Record Document 55) is GRANTED. All Remedies’s claims filed against AES are DISMISSED.
A judgment consistent with the instant Memorandum Ruling shall be issued herewith.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 27th day of January, 2025.

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