Mendenall v. Walterboro Veneer Inc et al
Filing
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ORDER granting plaintiff's motion to certify a question to the South Carolina Supreme Court. Signed by Honorable David C Norton on 3/30/12. (juwo, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
SUZANNE ROERIG MENDENALL,
)
PERSONAL REPRESENTATIVE OF THE )
ESTATE OF EVERETTE EUGENE
)
MENDENALL,
)
)
Plaintiff,
)
)
vs.
)
)
ANDERSON HARDWOOD FLOORS,
)
LLC, SHAW INDUSTRIES, INC., AND )
SHAW INDUSTRIES GROUP, INC.,
)
)
Defendants.
)
)
No. 2:11-cv-01291-DCN
ORDER
This matter is before the court on plaintiff’s motion to certify a question to the
South Carolina Supreme Court. Because this case involves a question of South Carolina
law that is determinative of the action and has not been addressed by the controlling
precedent of the South Carolina Supreme Court, the court grants plaintiff’s motion.
I. STANDARD
South Carolina Appellate Court Rule 244 provides that the South Carolina
Supreme Court
in its discretion may answer questions of law certified to it by any federal
court of the United States . . . when requested by the certifying court if
there are involved in any proceeding before that court questions of law of
this state which may be determinative of the cause then pending in the
certifying court when it appears to the certifying court there is no
controlling precedent in the decisions of the Supreme Court.
SCACR 244(a). The certification order must set forth: (1) “the questions of law to be
answered”; (2) “all findings of fact relevant to the questions certified”; and (3) “a
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statement showing fully the nature of the controversy in which the questions arose.”
SCACR 244(b).
II. BACKGROUND AND FACTUAL FINDINGS1
On February 28, 2011, plaintiff Suzanne Roerig Mendenall (Mendenall), as the
personal representative of the estate of her deceased husband Everette Mendenall (Mr.
Mendenall), filed an amended complaint in state court for wrongful death and a survival
action against defendants Walterboro Veneer, Inc.; Standard Plywoods, Inc.; Anderson
Hardwood Floors, Inc.; Anderson Hardwood Floors, LLC; Shaw Industries, Inc.; and
Shaw Industries Group, Inc. (collectively, defendants). Defendants removed the case to
federal court on May 27, 2011. This court denied a motion to remand. Defendants filed
a motion to dismiss on June 3, 2011, to which plaintiff filed a response in opposition on
July 1, 2011, along with a motion to certify a question on November 2, 2011.
On March 1, 2012, this court held a hearing on the motion to dismiss and motion
to certify a question. The court dismissed without prejudice defendants Walterboro
Veneer, Inc., Standard Plywoods, Inc., and Anderson Hardwood Floors, Inc. Plaintiff has
since indicated that she will be filing a motion to amend her complaint to allege further
allegations against Shaw Industries, Inc., Shaw Industries Group, Inc., and Anderson
Hardwood Floors, LLC. The court granted plaintiff’s motion to certify a question.
Walterboro Veneer, Inc. was a South Carolina corporation that owned and
operated a wood products manufacturing plant. See Compl. ¶¶ 2, 11. In 2003,
Walterboro Veneer, Inc. constructed a cement vat, “Vat #3,” for the purpose of soaking
hardwood logs in a highly heated solution prior to milling. Id. ¶ 12. On December 31,
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In light of the procedural posture of this case, the facts set forth herein are essentially the
allegations in the plaintiff’s amended complaint, which, for the purposes of the instant motion,
the court accepts as true.
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2007, Walterboro Veneer merged with Standard Plywoods, Inc. Pl.’s Mem. Opp. Mot. to
Dismiss 2. One minute later, Standard Plywoods, Inc. merged with Anderson Hardwood
Floors, Inc. Id. ¶ 6.
On January 28, 2008, Anderson Hardwood Floors, Inc. hired Mr. Mendenall to
work at a plant in Colleton County, South Carolina, the same plant that was formerly
owned and operated by Walterboro Veneer, Inc. Four months into his employment, Mr.
Mendenall fell into Vat #3 when he was attempting to access a steam leak for repairs. Id.
¶¶ 12-13. The vat was filled with a solution heated to approximately 193 degrees
Fahrenheit, which burned ninety percent of Mr. Mendenall’s body and eventually caused
his death on June 6, 2008. Id. ¶ 13.
After these incidents, on August 8, 2009, Anderson Hardwood Floors, Inc., Mr.
Mendenall’s former employer, became Anderson Hardwood Floors, LLC. Pl.’s Mem.
Opp. Mot. to Dismiss 2.
III. NATURE OF THE CONTROVERSY
The exclusivity provision of the South Carolina Workers’ Compensation Act
precludes an employee from maintaining an action in tort against the employer when the
employee sustains a work-related injury. S.C. Code Ann. § 42-1-540. This exclusivity
doctrine creates a balance: “the employee gets swift, sure compensation, and the
employer receives immunity from tort actions by the employee.” Strickland v. Galloway,
560 S.E.2d 448, 449 (S.C. Ct. App. 2002). This case involves the application of the
exclusivity doctrine in the corporate merger context, in which “every other corporation
party to the merger merges into the surviving entity and the separate existence of every
corporation except the surviving entity ceases,” S.C. Code Ann. § 33-11-106(a)(1), and
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“the surviving entity has all liabilities of each corporation party to the merger,” id. § 3311-106(a)(3).
At the time of his accident, Mr. Mendenall was employed by Anderson Hardwood
Floors, Inc.; thus, the exclusivity doctrine bars a direct action against this defendant in
tort based on a work-related injury. Moreover, as a result of the South Carolina merger
statute, defendants Walterboro Veneer, Inc. and Standard Plywoods, Inc. have ceased
their corporate existence and may not be sued directly. Plaintiff instead argues that
Walterboro Veneer’s inchoate liability in designing and constructing a defective vat
passed to Anderson Hardwood Floors, Inc. (now Anderson Hardwood Floors, LLC) as a
result of the merger.
Plaintiff relies on the “dual persona” doctrine to argue that the court should hold
Anderson Hardwood Floors, LLC liable for the allegedly tortious acts of its predecessors.
This doctrine renders an employer “vulnerable to a tort action by an employee if the
employer has a second persona completely independent from and unrelated to its status as
an employer that is legally recognized as a separate legal identity.” 82 Am. Jur. 2d
Workers’ Compensation § 56. Plaintiff argues that Anderson Hardwood Floors, LLC has
a “dual persona” both as Mr. Mendenall’s employer as well as the successor in interest to
the liabilities of Walterboro Veneer, Inc. Based on this latter persona, plaintiff contends
that Anderson Hardwood Floors, LLC should be held liable for the allegedly negligent
acts of its corporate predecessors in designing and constructing Vat #3.
The dual persona doctrine has been recognized and applied by courts in other
jurisdictions. See, e.g., Van Doren v. Coe Press Equip. Corp., 592 F. Supp. 2d 776 (E.D.
Pa. 2008) (applying Pennsylvania law); Stayton v. Clariant Corp., 10 A.3d 597 (Del.
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2010); Billy v. Consol. Mach. Tool Corp., 412 N.E.2d 934 (N.Y. 1980). However, not all
jurisdictions have adopted the dual persona doctrine or applied it favorably to a plaintiff’s
case. See, e.g., Braga v. Genltye Grp., Inc., 420 F.3d 35 (1st Cir. 2005) (applying
Massachusetts law); Corr v. Willamette Indus., Inc., 713 P.2d 92 (Wash. 1986).
The South Carolina Supreme Court has expressly rejected a related theory, the
“dual capacity” doctrine, see Johnson v. Rental Unif. Serv. of Greenville, 447 S.E.2d 184
(S.C. 1994), but has neither accepted nor rejected the “dual persona” doctrine. In Tatum
v. Medical University of South Carolina, 552 S.E.2d 18 (S.C. 2001), the South Carolina
Supreme Court reversed the Court of Appeals’ decision that found the dual persona
doctrine applicable to the facts of that case. The Supreme Court stated, “Even if we were
to adopt the ‘dual persona’ doctrine, it is inapplicable in this situation.” Id. at 25.2
Based on the lack of controlling precedent, and because the applicability of the
dual persona doctrine is determinative of this case, the court finds it necessary to certify a
question to the South Carolina Supreme Court.
IV. CERTIFIED QUESTION
The court certifies the following question:
Does the “dual persona” doctrine allow an injured employee to bring an
action in tort against his employer as a successor in interest who, through a
corporate merger, received all liabilities of a predecessor corporation that
never employed the injured person but allegedly performed the negligent
acts that later caused the employee’s injuries, or is such an action barred
by the exclusivity provision of the South Carolina Workers’
Compensation Act?
2
The Supreme Court noted that several other jurisdictions “have adopted the ‘dual persona’
doctrine in the context of product liability suits by employees” and “have applied the ‘dual
persona’ doctrine where the employer has other legally-recognized identities.” Id. at 23-24.
Rather than predict how a South Carolina court would rule in this case, the court finds it more
prudent to certify this question to the South Carolina Supreme Court.
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V. CONCLUSION
Based on the foregoing, the court GRANTS plaintiff’s motion and CERTIFIES
the foregoing question to the South Carolina Supreme Court. The clerk shall forward a
copy of this order to the Supreme Court under this court’s official seal.
AND IT IS SO ORDERED.
________________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 30, 2012
Charleston, South Carolina
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