Powell v. The Zurich Services Corporation
Filing
50
ORDER granting 32 Motion for Summary Judgment Signed by Honorable David C. Bramlette, III on 1/25/2016 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOHNEVERIC T. POWELL
PLAINTIFF
VS.
CIVIL ACTION NO. 5:14-cv-115(DCB)(MTP)
ZURICH AMERICAN INSURANCE COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendant Zurich
American Insurance Company (“Zurich”)’s Motion for Summary Judgment
(docket entry 32).
Having carefully considered the motion and
response, the memoranda and the applicable law, and being fully
advised in the premises, the Court finds as follows:
In
his
Complaint,
the
plaintiff,
Johneveric
T.
Powell
(“Powell”), who is African-American, states that he brings this
action
... under the provisions of 42 U.S.C. Sections 1981, and
1982, which prohibit intentional race discrimination in
the making and enforcement of private contracts, and
guarantee equal right[s] to make and enforce contracts,
including contracts regarding the provision of workers’
compensation insurance and benefits. Section 1981 gives
to Plaintiff the same rights to the full and equal
benefit of all laws and proceedings for the security of
persons and property, as is enjoyed by white citizens,
and Section 1982 prohibits deprivation of Plaintiff’s
rights because of his race.
Complaint, ¶ 3.
The Complaint also alleges several state law
claims: negligent infliction of emotional distress, intentional
infliction of emotional distress, conspiracy with plaintiff’s
employer regarding termination of plaintiff’s employment, fraud,
interference in employment relationship, bad faith, and breach of
duty of fair dealing.
Complaint, ¶ 24 (c)-(I).
All of the state
law claims have been voluntarily dismissed by the plaintiff.
Plaintiff’s Brief in Response to Defendant’s Motion for Summary
Judgment, p. 28 (“While denying that Defendant is entitled to
Summary
Judgment
regarding
Plaintiff’s
Section
1981
and
1982
claims, in the interest of judicial economy, Plaintiff confesses
Defendant’s Motion for Summary Judgment regarding the remaining
claims asserted in Plaintiff’s Complaint.”).
Powell, a resident of the State of Mississippi, contracted
coccidiodomycosis (“Valley Fever”) at a job site in Southern
California while working as a crew leader of a seismic crew for
Geokinetics,
Inc.
(“Geokinetics”).
Zurich
compensation insurance to Geokinetics.
provided
workers’
The plaintiff made a claim
for workers’ compensation benefits under the Workers’ Compensation
Act (“WCA”) of California.
He has received indemnity and medical
benefits under California law, and his claim is still pending
before the California Workers’ Compensation Appeals Board (“WCAB”).
The Ninth Circuit Court of Appeals has noted that California
law
vests
exclusive
California WCAB.
jurisdiction
over
benefit
claims
in
the
Goetz v. Aetna Casualty and Surety Co., 710 F.2d
561, 563 (9th Cir. 1983).
However, in Unruh v. Truck Insurance
Exchange, 498 P.2d 1063 (1972), “the California Supreme Court
recognized an exception to the exclusive jurisdiction established
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by statute where an employer’s insurance carrier intentionally
engages in outrageous and extreme conduct which cannot be justified
by the needs of normal investigation or defense of claims.” Goetz,
710 F.2d at 564-65 (citing Unruh). In Unruh, the plaintiff alleged
that the insurer’s investigator had made romantic overtures to her
for the sole purpose of arranging dates during which his colleague
could surreptitiously film the plaintiff performing acts beyond her
normal physical capabilities.”
Id. at 565 (citing Unruh).
Powell alleges no such extreme or outrageous conduct in this
case.
Lardie,
Instead, he alleges that Zurich’s “team manager,” Nick
asked
the
plaintiff
why
African-Americans
were
more
susceptible than others to Valley Fever, and told the plaintiff
that before he could approve payments to the plaintiff he “had to
understand more about Valley Fever.”
Complaint, ¶ 13.
The
plaintiff’s claims amount to no more than wrongful refusal to pay
claims, which California law does not recognize as an exception to
the exclusive jurisdiction statute.
Apparently to avoid the exclusivity bar, the plaintiff has
boiled his case down to two claims: 42 U.S.C. § 1981, which
provides that all persons within the jurisdiction of the United
States shall have the same right in every State to make and enforce
contracts, to sue, to be parties, to give evidence, and to enjoy
the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens,
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and shall be subject to the same punishment, penalties, and taxes
(see Ungureanu v. A. Teichert & Son, 2011 WL 4862425, *9 (E.D.
Calif. Oct. 13, 2011)); and 42 U.S.C. § 1982, which prohibits a
defendant from denying the plaintiff the opportunity to “rent or
purchase certain property or housing” on account of the plaintiff’s
race (see Atwal v. Lawrence Livermore National Security, LLC, 2012
WL 525534, *3 (N.D. Calif. Feb. 16, 2012). Powell’s Complaint does
not pertain to real property or housing of any kind, thus this
claim is without merit.
As for the plaintiff’s § 1981 claim, he must show (1) that he
is a member of a racial minority, (2) that the defendant had intent
to
discriminate
on
the
basis
of
race,
and
(3)
that
the
discrimination concerned one or more of the activities enumerated
in the statute.
Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th
Cir.), cert. denied, 124 S.Ct. 567 (2003).
Although the insurance
carrier’s agent expressed reservations concerning the prevalence of
Valley Fever among African-Americans, the plaintiff has not pled
any evidence to show that he was subject to discrimination, nor
that he lost any contract rights as a result thereof.
The
plaintiff has also failed to offer, or point to, any evidence which
shows that he was entitled to receive additional benefits from the
defendant.
Finally, the plaintiff has failed to show that he has
exhausted his administrative remedies.
Rule 56 of the Federal Rules of Civil Procedure authorizes
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summary judgment where “the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits,
if any, show that there is no genuine dispute as to any 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);
Fed.R.Civ.P. 56(c). Taking all allegations in the Complaint and in
the plaintiff’s brief as true, the plaintiff has failed to show
that there is any genuine issue for a trial under 42 U.S.C. § 1981
or § 1982.
The defendant is therefore entitled to judgment as a
matter of law.
Accordingly,
IT IS HEREBY ORDERED that the defendant Zurich American
Insurance Company’s Motion for Summary Judgment (docket entry 32)
is GRANTED.
A final judgment shall be entered of even date herewith.
SO ORDERED, this the 25th day of January, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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