Ellingsworth v. Vermeer Manufacturing Company et al
Filing
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ORDER denying 7 motion to remand Signed on December 2, 2016 by Magistrate Judge Sarah W. Hays. (Clinton, Erica)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTH WESTERN DIVISION
ROBERT DALE ELLINGSWORTH,
Plaintiff,
v.
VERMEER MANUFACTURING
COMPANY, DWAYNE MARSHALL,
Defendants.
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ORDER
This matter is before the Court on plaintiff Robert Dale Ellingsworth’s motion to remand.
(Doc. #7) For the following reasons, the motion will be denied.
I. BACKGROUND
On April 22, 2016, Defendant Vermeer Manufacturing Company (hereafter “Vermeer”)
removed this action from the Circuit Court of Stone County due to diversity of citizenship
between plaintiff Robert Dale Ellingsworth (hereafter “Ellingsworth”) and Vermeer. (Doc. #1)
Ellingsworth’s allegations stem from a workplace accident which occurred on February 13,
2014. (Doc. #1-1, at ¶9) At the time of the injury Ellingsworth, an employee of Vaught Tree
Service, was feeding a small tree into a wood chipper manufactured by Vermeer. (Doc. #1-1, at
¶¶8, 9) As Ellingsworth was feeding the tree into the wood chipper the rope/line became
entangled in the branches of the tree, which caused the rope/line, log chain and hook to strike
Ellingsworth’s legs causing him serious injuries. (Doc. #1-1, at ¶9) Ellingsworth filed suit
against Vermeer alleging design defect (strict products liability), failure to warn (strict products
liability), defective product (negligence), and a failure to warn (negligence). (Doc. #1-1, at Cnts.
I-IV).
Additionally, Ellingsworth also brought claims against his co-employee/supervisor
Dwayne Marshall (hereafter “Marshall”) for co-employee negligence and for “something
more/purposeful and dangerous acts that increased the risk of danger”. (Doc. #1-1, at Cnts. VVI)
Plaintiff Ellingsworth and defendant Marshall are residents of Missouri. (Doc. #1-1, at
¶¶1, 4) Defendant Vermeer is an Iowa corporation with its principal place of business in Pella,
Iowa. (Doc. #1-1, at ¶2) In the removal petition and in response to Ellingsworth’s motion to
remand, defendant Vermeer argues that defendant Marshall was fraudulently joined because
Missouri law precludes liability for Marshall’s conduct and plaintiff has not plead any facts
showing that Marshall committed an affirmative negligent act which would expose him to
liability. (Doc. #1, at ¶¶10-11; Doc. #9, at 11-14) Therefore, because Marshall was fraudulently
joined, Vermeer argues that this Court may properly exercise diversity jurisdiction in this matter.
(Doc. #1, at ¶13) Plaintiff argues that he has sufficiently alleged a cause of action against
Marshall under the “something more” doctrine. (Doc. #7, at ¶5) Therefore, plaintiff contends
that Marshall’s joinder was not fraudulent and his joinder destroys diversity, thus necessitating
remand. (Doc. #7, at ¶6)
II. DISCUSSION
Generally, a civil case brought in state court may be removed by a defendant to federal
court, if the case could have been brought in federal court originally. 28 U.S.C. ' 1441(a). As a
court of limited jurisdiction, it is essential that jurisdiction be established as a threshold matter.
See Godfrey v. Pulitzer Pub=l Co., 161 F.3d 1137, 1141 (8th Cir. 1998). The party seeking
removal has the burden of showing that this Court has subject matter jurisdiction. In re Bus.
Men's Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993). All doubts concerning federal
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jurisdiction must be resolved in favor of remand. Wilkinson v. Shackelford, 478 F.3d 957, 963
(8th Cir. 2007); Transit Cas. Co. v. Certain Underwriters at Lloyd=s of London, 119 F.3d 619, 625
(8th Cir. 1997), cert. denied, 522 U.S. 1075 (1998).
When jurisdiction is predicated on diversity of citizenship, complete diversity must exist
between the plaintiff and defendants and the amount in controversy must exceed $75,000.00. 28
U.S.C. § 1332(a). The removing party bears the burden of establishing these requirements.
Altimore v. Mount Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005). Furthermore, a matter
cannot be removed “if any of the parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2).
A fraudulent joinder occurs where there is a “filing of a frivolous or otherwise
illegitimate claim against a nondiverse defendant solely to prevent removal.” Filla v. Norfolk
Southern Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003). Fraudulent joinder occurs where, under
state law, it is clear that there exists no cause of action against the non-diverse defendant. Block
v. Toyota Motor Corp., 665 F.3d 944, 948 (8th Cir. 2011). Where, however, “there is a
>colorable= cause of actionB that is, if the state law might impose liability on the resident
defendant under the facts allegedB then there is no fraudulent joinder.” Filla, 336 F.3d at 810.
The removing party has the burden of showing that the resident defendant’s joinder is fraudulent.
Hutchen v. Wal-Mart Stores E. I, LP, 555 F. Supp. 2d 1013, 1017 (E.D. Mo. 2008).
The Eighth Circuit has rejected the argument that courts should review fraudulent joinder
in the same manner as a Rule 12(b)(6) dismissal. Junk v. Terminix Int'l Co., 628 F.3d 439, 445
(8th Cir. 2010). The court in Junk, noted that the Rule (12)(b)(6) standard is more demanding
than the Filla standard, and that “[u]nder the Filla standard ‘the district court’s task is limited to
determining whether there is arguably a reasonable basis for predicting that the state law might
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impose liability based upon the facts involved.” Junk, 628 F.3d at 445. Therefore, this Court will
utilize the Filla standard in assessing whether remand is required.
In its Notice of Removal, defendant Vermeer contends that Missouri’s Workers’
Compensation Law (Mo. Rev. Stat. §278.010, et seq.) precludes liability for Marshall’s conduct
because Ellingsworth has not alleged that Marshall committed an “affirmative negligent act” and
therefore no cause of action can be brought against Marshall. (Doc. #1, at ¶¶5-12) Ellingsworth
argues that his allegations of an “affirmative negligent act” against Marshall are “premised upon
Marshall’s actions in ordering plaintiff to use a wood chipper that he knew to be dangerous and
malfunctioning, and do so without adequate assistance from other workers, among other
affirmative acts of neglect.”1 (Doc. #7, at 1-2) In his Suggestions in Support of Plaintiff’s
Motion to Remand, Ellingsworth elaborates by stating that:
Despite the fact that industry practice, as well as the chipper’s product
instructions, required at least two workers assist in loading tree branches into the
chipper at any given time, Marshall only assigned one worker, he being
[Ellingsworth], to load wood into the chipper. He assigned all other workers at the
job site to other tasks, thus prohibiting them from assisting Dale. Further at the
time of the injury, Marshall had left the job site, thus neglecting to oversee the
operation of the tree removal project. Additionally Marshall refused to outfit the
wood chipper with protective devices necessary to make [Ellingsworth’s] job
safe, or to implement worksite safety rules.
(Doc. #8, at 2)
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Ellingsworth also argues that Marshall did not consent to the removal and therefore the
rule of unanimity is violated. (Doc. #10, at 11-12) This district, however, has
consistently found that “the consent to removal of a party who has been fraudulently
joined is not necessary.” Simpson v. Niagra Mach. & Tool Works, No. 05-1122-CV-WFJG, 2006 WL 181954, at *3 n. 1 (W.D. Mo. Jan. 24, 2006), aff'd sub nom. Simpson v.
Thomure, 484 F.3d 1081 (8th Cir. 2007); Santoyo v. Bear Lake Holdings, Inc., No. 10CV-04050-NKL, 2010 WL 2522745, at *4 (W.D. Mo. June 15, 2010); Chou Vu Heu v.
Toyo Mach. & Metal Co., No. 05-1030-CV-W-SOW, 2006 WL 89851, at *2 (W.D. Mo.
Jan. 13, 2006); Pleasant v. Noble Fin. Corp., 54 F. Supp. 3d 1071, 1074 n. 1 (W.D. Mo.
2014). Therefore, Marshall’s consent was not required.
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An employer has “a nondelegable duty to provide a reasonably safe place to work.”
Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 672 (Mo. 1993).
At common law, an
employer’s duties relevant to safety were:
(1) to provide a safe workplace; (2) to provide safe equipment in the workplace;
(3) to warn employees about the existence of dangers of which the employees
could not reasonably be expected to be aware; (4) to provide a sufficient number
of competent fellow employees; and (5) to promulgate and enforce rules
governing employee conduct for the purpose of enhancing safety.
Hansen v. Ritter, 375 S.W.3d 201, 208 (Mo. Ct. App. 2012). An employer who fails to
discharge any of these duties remains liable to an employee under the Workers’ Compensation
Law. Id. at 210. The Workers’ Compensation Law supplanted the common law by entitling an
employee “to recover for such accidents without the necessity of establishing negligence and was
freed from defenses such as fellow servant, contributory negligence and assumption of risk . . . .
[while the employer] received immunity from general tort liability and damages and received an
established basis for determining the extent of its monetary liability.” State ex rel. Badami v.
Gaertner, 630 S.W.2d 175, 180 (Mo. Ct. App. 1982).
Whether the exclusivity provisions of the Workers’ Compensation Law applied to coemployee liability has varied widely over the course of the act’s existence. See Peters v. Wady
Industries, Inc., 489 S.W.3d 784, 790-793 (Mo. 2016) (discussing the treatment of co-employee
liability under the Workers’ Compensation Law). The current version of the statute, and that
which was in effect at the time of the accident, states, in part:
Any employee of such employer shall not be liable for any injury or death for
which compensation is recoverable under this chapter and every employer and
employees of such employer shall be released from all other liability whatsoever,
whether to the employee or any other person, except that an employee shall not be
released from liability for injury or death if the employee engaged in an
affirmative negligent act that purposefully and dangerously caused or increased
the risk of injury.
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Mo. Rev. Stat. §287.120.
Both parties agree that the current version of the Workers’
Compensation Law requires that the court determine whether “something more” than the failure
to non-delegable duties has been alleged. (Doc. #8, at 9-10; Doc. #9, at 5-6) This Court agrees
that the current version of the statute requires a something more/affirmative negligent act
determination.
The “something more” test in Missouri first arose in State ex rel. Badami v. Gaertner, 630
S.W.2d 175 (Mo. Ct. App. 1982). There the Court of Appeals was asked to determine “whether
a supervisory employee, including a corporate officer, may be held personally liable for injuries
sustained by a fellow employee covered by workmen's compensation where the injuries occur
because of the supervisor's failure to perform the duty, assigned to him by the employer, to
provide the fellow employee a reasonably safe place to work.” Badami, 630 S.W.2d at 176.
After reviewing the history of co-employee liability, Missouri’s Workers’ Compensation Law,
and the treatment of the issue by other states, the court found that the approach Wisconsin took
was more closely aligned with the treatment of co-employee liability in Missouri. Id. The
Wisconsin approach held that a supervisory co-employee has “immunity under the workmen's
compensation law where his negligence is based upon a general non-delegable duty of the
employer; he does not have immunity where he does an affirmative act causing or increasing the
risk of injury.” Id. at 179. The Badami court found that “something more” than the mere failure
of the co-employee to fulfill the duty to provide a “reasonably safe place to work” which was
delegated to the co-employee by the employer must be charged. Id. at 180.
The Supreme Court of Missouri later refined the “something more” test to require that the
co-employee commit “affirmative negligent acts outside the scope of an employer's
responsibility to provide a safe workplace.” Kelley, 865 S.W.2d at 672; see also State ex rel.
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Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. 2002) overruled on other grounds by McCracken v.
Wal-Mart Stores E., LP, 298 S.W.3d 473 (Mo. 2009). An affirmative negligent act “can best be
described as an affirmative act that creates additional danger beyond that normally faced in the
job-specific work environment.” Burns v. Smith, 214 S.W.3d 335, 338 (Mo. 2007). The court in
Burns further noted that the requirement of an affirmative negligent act “satisfies the concern
that although there must be an independent duty to the injured co-employee, that duty cannot
arise from a mere failure to correct an unsafe condition and must be separate and apart from the
employer's non-delegable duty to provide a safe workplace.” Burns, 214 S.W.3d at 338.
While the current statute is a departure from earlier statutes regarding the exclusivity
clause and co-employee liability, the language of the statute closely follows the language of the
post-Taylor “something more”/affirmative negligent act cases. Peters, 489 S.W.3d at 798 n. 10.
Therefore, cases applying the something more/affirmative negligent act test, especially those
decided after Taylor, are useful in analyzing whether section 287.120 precludes liability. In
arguing that Ellingsworth has sufficiently alleged an affirmative negligent act against Marshall,
Ellingsworth urges this court to look at Burns, Groh v. Kohler, 148 S.W.3d 11 (Mo. Ct. App.
2004), and Knudson v. Sys. Painters, Inc., 634 F.3d 968 (8th Cir. 2011).
In Burns, the plaintiff was injured when a water pressure tank on a concrete mixer truck
exploded as plaintiff was entering the cab of the truck. Burns, 214 S.W.3d at 336. A few months
prior to the explosion, defendant, who was plaintiff’s supervisor, used a salvage water pressure
tank to place a weld over an area on the tank that was corroded and rusted. Id. Upon completing
the weld, defendant told plaintiff to “run it till it blows”, which it did a few months later. Id. The
court in Burns noted that the manner in which the water pressure tank was welded created a
dangerous condition and that the condition of the water pressure tank had deteriorated to the
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point that a weld should not have been attempted. Id. at 339. Furthermore, the defendant, who
was not a certified welder, had done the welds incorrectly in part because he had poor vision. Id.
The court found defendant’s directive to “run it till it blows” was an intentional act that he “knew
would result in a particularly dangerous event.” Id. Therefore, the court found that defendant
had committed an affirmatively negligent act which created an additional danger beyond what is
normally faced in such an environment. Id.
The plaintiff in Groh v. Kohler, 148 S.W.3d 11 (Mo. Ct. App. 2004), operated a plastic
injection moulding machine as part of her employment. Groh v. Kohler, 148 S.W.3d 11, 12 (Mo.
Ct. App. 2004) abrogated on other grounds by Burns. Plaintiff informed her supervisor that the
machine would occasionally malfunction, to which the supervisor told the plaintiff to “quit
whining” and to “just deal with it.” Id. The plaintiff was later injured when the machine
malfunctioned. Id. at 12. The court found that cases finding that plaintiffs had sufficiently
alleged “something more” were cases that “the supervisor personally participated in the activity
constituting the ‘something more’ by directing the employee to participate in acts that were
dangerous and that a reasonable person would recognize to be hazardous and beyond the usual
requirements of the employment.” Id. at 14. The co-employee/supervisor in Groh was informed
of the malfunctioning machine and failed to inspect or fix the machine. Id. at 16. Furthermore,
the co-employee/supervisor told plaintiff to “quit whining” and to “just deal with it.” Id.
Therefore, the court found that the “reasonable inference is that [the co-employee/supervisor],
knowing the machine’s function was to compress plastic with substantial force, expected and
required [plaintiff] to use the allegedly defective and dangerous machine without regard to its
condition or her safety.” Id. The court went on to find that the co-employee/supervisor’s conduct
was sufficient to meet the “something more”/affirmative negligent act standard. Id.
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In Knudson v. Sys. Painters, Inc., 634 F.3d 968 (8th Cir. 2011), the plaintiff alleged that
his co-employee/supervisor demanded the plaintiff install HVAC systems in a poorly ventilated
area despite the co-employee/supervisor’s knowledge that the plaintiff and other workers had
complained about the poor ventilation issues and had experienced breathing issues. Knudson,
634 F.3d at 981.
Citing Groh, the Eighth Circuit found that a co-employee/supervisor
“‘effectively created the dangerous condition by ordering [the plaintiff] to work in an
environment where [the co-employee/supervisor] knew the employees he was supervising were
having breathing problems.” Id. at 981-82.
Therefore, the Court found that there was an
arguably reasonable basis “for predicting that [Missouri law] might impose liability” on the coemployee and therefore the co-employee/supervisor was not fraudulently joined. Id. at 982.
Defendant Vermeer, on the other hand, asserts that the instant matter is similar to those
cases finding that the plaintiff failed to sufficiently allege an affirmative negligent act on the part
of the co-employee. (Doc. #9, at 8) In Taylor, the plaintiff was injured when a co-employee,
who was driving a trash truck, hit a mailbox causing the plaintiff to be injured. Taylor, 73
S.W.3d at 621. In its suit against defendant, plaintiff alleged that defendant “1) failed to keep a
careful lookout; 2) carelessly and negligently struck a mailbox while driving; and 3) carelessly
and negligently drove too close to a fixed object.” Id. at 622. The Supreme Court of Missouri
found that the allegations failed to allege any “purposeful, affirmatively dangerous conduct” and
instead are directed at the employer’s duty to provide a safe work environment. Id. Therefore,
the co-employee was protected from liability under the Workers’ Compensation Law. Id.
In Nowlin ex rel. Carter v. Nichols, 163 S.W.3d 575 (Mo. Ct. App. 2005), the decedent
and co-employee were attempting to extricate a bulldozer that had become stuck in the mud.
Nowlin ex rel. Carter v. Nichols, 163 S.W.3d 575, 577 (Mo. Ct. App. 2005), abrogated on other
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grounds by Burns. The co-employee directed the decedent to assist in the extrication. Id. The
co-employee, operating a second bulldozer in an attempt to extricate the first bulldozer, drove the
second bulldozer uphill. Id. The co-employee exited the second bulldozer while the second
bulldozer’s motor was running, and the second bulldozer rolled downhill, pinning the decedent
between the two bulldozers. Id. The court found that the co-employee’s conduct was “within the
usual scope of employment” and that he did not “engage in inherently dangerous conduct
purposefully directed at plaintiff.” Id. at 579. The court stressed that an “affirmative negligent
act is not synonymous with any negligent act, as the law requires a purposeful act ‘directed’ at a
co-employee.” Id. The court went on to state that a “simple allegation of negligent operation of
machinery or a vehicle is not ‘something more’ than an allegation of a breach of duty to maintain
a safe working environment.” Id. at 580.
In Simpson v. Thomure, 484 F.3d 1081 (8th Cir. 2007), the Eighth Circuit affirmed a
district court’s decision denying a motion to remand and dismissing the non-diverse party
pursuant to Federal Rule of Civil Procedure 12(b)(6). Simpson v. Thomure, 484 F.3d 1081, 1083
(8th Cir. 2007). The plaintiff in Simpson, alleged that she was injured while operating a machine
which could be operated in two control modes, one of which carried a higher risk of danger to
the operator. Id. Plaintiff further alleged that the co-employee/supervisor had the key to switch
to the riskier mode and did so without providing adequate safety instructions to plaintiff. Id. The
court found that plaintiff’s injuries occurred during the course of her normal duties and the
machine was not “make-shift” or “jerry-rigged.” Id. The co-employee/supervisor was not aware
that the machine was malfunctioning. Id. The plaintiff’s allegations were only that the coemployee/supervisor was “negligent for setting the machine to operate in the more dangerous of
its two control modes and for allowing [the plaintiff] to operate the machine in that control mode
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without adequate safety instruction.” Id. The court rejected plaintiff’s attempt to hold the coemployee/supervisor liable and found that the condition of the machine “‘was part of the
employer's nondelegable duty to provide a safe workplace.’ Failing to install a recommended
safety device relates to the employer's general duty to provide a safe work environment. And
allegations of inadequate training or inadequate safety warnings also relate to the employer's
general duty.” Id. at 1086 (internal citations omitted).
In the instant matter, Ellingsworth was injured when he was feeding a small tree into a
wood chipper. (Doc. #1-1, at ¶9) While Ellingsworth was feeding the tree into the wood chipper
the winch rope/line became entangled in some branches which caused the rope/line, log-chain
and hook to hit Ellingsworth at a high rate of speed causing him injury. (Doc. #1-1, at ¶9) As
discussed supra, Ellingsworth claims that Marshall committed affirmative negligent acts by
requiring Ellingsworth to operate the tree chipper alone without sufficient assistance from other
workers, failing to equip the wood chipper with safety devices, failing to implement safety rules
and proper training, and by leaving the job site.
Ellingsworth’s allegations do not rise to the level of affirmative negligent acts directed at
Ellingsworth. Unlike the facts in Burns or Groh, there is no indication that Marshall knew the
danger posed by the wood chipper or that he somehow created an increased risk of danger.2
Ellingsworth’s allegation that Marshall knew or should have known that the wood chipper was in
a defective condition, or that injury to the plaintiff was inevitable are “mere conclusions not
supported by alleged fact . . . [and may be] properly disregarded . . . .” See Felling v. Ritter, 876
S.W.2d 2, 5 (Mo. Ct. App. 1994) (rejecting certain assertions by the plaintiff where such
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In his complaint, Ellingsworth utilizes a reasonable prudent person standard in determining
whether Marshall should have anticipated the danger. (Doc. #1-1, at ¶62) The reasonable
prudent person standard was rejected by the Supreme Court of Missouri in Burns and therefore
will not be considered by this Court. Burns, 214 S.W.3d at 338-39.
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assertions were not supported by alleged facts). Furthermore, Ellingsworth’s own claims show
that the wood chipper was used in the manner it was intended to be used. As part of his product
liability claims against Vermeer, Ellingsworth asserts that the “wood chipper was used by
[Ellingsworth] in a manner reasonably anticipated.” (Doc. #1-1, at ¶¶14, 22, 23, 43) (emphasis
added) Therefore, there is no showing that Marshall created an increased risk of danger.
Ellingsworth’s allegations against Marshall fit squarely within the duties of the employer
to provide a reasonably safe working environment. In fact, each of Ellingsworth’s allegations is
specifically addressed in the list of non-delegable duties specifically ascribed to the employer
under common law, discussed in Hansen, supra.
Therefore, no cause of action could be
maintained against Marshall and his joinder was fraudulent. Hence, removal to this Court was
proper.
III. CONCLUSION
Based on the foregoing, it is
ORDERED that plaintiff Ellingsworth’s motion for remand (doc. #7) is DENIED.
/s/ Sarah W. Hays
SARAH W. HAYS
UNITED STATES MAGISTRATE JUDGE
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