Williams et al v. Schauenburg Flexadux Corporation

Filing 39

MEMORANDUM OPINION AND ORDER; DENIES AS MOOT 4 Defendnat's Motion to Dismiss Complaint; DENIES AS MOOT 10 Defendant's Motion to Dismiss Amended Complaint; GRANTS 17 Plaintiffs' Motion to Amend/Correct; DENIES 29 Defendant's Motion to Dismiss second amended complaint. Signed by District Judge Irene M. Keeley on 12/23/2011. (Copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MELVIN E. WILLIAMS, II, and
CATHY WILLIAMS,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:11CV60
(Judge Keeley)

SCHAUENBURG FLEXADUX CORPORATION,
A Colorado Corporation
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court are the plaintiffs’ motion to amend their
complaint

and

the

defendant’s

three

motions

to

dismiss

the

plaintiffs’ complaint. For the reasons that follow, the Court
GRANTS the plaintiffs’ motion to amend their complaint (dkt. no.
17),

DENIES

AS

MOOT

the

defendant’s

motions

to

dismiss

the

complaint (dkt. no. 4) and the amended complaint (dkt. no. 10), and
also DENIES the defendant’s motion to dismiss the second amended
complaint (dkt. no. 29).
I.
The plaintiff, Melvin E. Williams, II (“Williams”), worked at
a fiberglass duct manufacturing facility in Fairmont owned and
operated

by

the

defendant,

Schauenburg

Flexadux

Corporation

(“Schauenburg”). On March 24, 2010, while Williams was inserting a
large rubber band into a piece of machinery, his hand became
entangled in the equipment. Unable to reach the machine's control

WILLIAMS v. SCHAUENBURG

1:11CV60

MEMORANDUM OPINION AND ORDER
dial or power switch to turn the equipment off, Williams was pulled
off the ground and thrown over the machine, fracturing the radius
and ulna of his right arm in the process.
II.
The plaintiffs filed this action in the Circuit Court of
Marion County, West Virginia, on March 25, 2011 and amended their
complaint shortly thereafter. After being served with the original
complaint, the defendant, Schauenburg, removed the case to this
Court

pursuant

jurisdiction,

to

and

28
moved

U.S.C.
to

§

1332,

based

the

original

dismiss

on

diversity

and

amended

complaints.1 The plaintiffs then moved to amend their complaint and
filed a second amended complaint (dkt. no. 26), which, pursuant to
Fed. R. Civ. P. 12(b)(6), Schauenburg then moved to dismiss for
failure to state a claim.
III.
A.
For good cause shown, the Court GRANTS the plaintiffs’ motion
to

amend

their

complaint

(dkt.

1

no.

17)

and

DENIES

AS

MOOT

The plaintiffs’ first amended complaint added Williams’s
supervisor, Kevin Cross (“Cross”), who immediately moved that he be
dismissed for ineffective service of process. The plaintiffs did not
oppose Cross’s motion, and, at a scheduling conference on June 8, 2011,
the Court granted Cross’s motion and dismissed him from the case (dkt.
no. 19). At the same hearing, the Court also scheduled a deadline for the
parties in which they could move to amend their pleadings.

2

WILLIAMS v. SCHAUENBURG

1:11CV60

MEMORANDUM OPINION AND ORDER
Schauenburg’s motions to dismiss the original complaint (dkt. no.
4) and the first amended complaint (dkt. no. 10).
The second amended complaint alleges three causes of action
against Schauenburg: (1) deliberate intent, under W. Va. Code § 234-2(d)(2)(ii)(A)–(E); (2) products liability; and (3) loss of
consortium.

In

its

motion

seeking

to

dismiss

this

complaint

Schauenburg argues that West Virginia’s Workers’ Compensation Act,
W. Va. Code §§ 23-2-6 and 23-4-2 (the “Act”), grants immunity to
employers

for

workplace

inflicted

with

injuries,

“deliberate

except

intention.”

It

for

those

contends

injuries
that

the

plaintiffs’ complaint fails to plead deliberate intent because it
alleges neither actual specific intent nor the five elements
specified in W. Va. Code § 23-4-2(d)(2)(ii). Schauenburg also
asserts

that

the

plaintiffs’

products

liability

and

loss

of

consortium claims are contingent upon a finding of liability under
the Act, and therefore fail as obvious attempts by the plaintiffs
to circumvent the statutory immunity granted to Schauenburg.
B.
To survive a motion to dismiss filed pursuant to Fed. R. Civ.
P.

12(b)(6),

a

complaint

must

contain

factual

allegations

sufficient to state a plausible claim for relief. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly,
3

WILLIAMS v. SCHAUENBURG

1:11CV60

MEMORANDUM OPINION AND ORDER
550 U.S. 544, 557 (2007). Although the Court must accept factual
allegations

in

a

complaint

as

true,

it

need

not

accept

the

plaintiffs’ legal conclusions. Francis v. Giacomelli, 588 F.3d 186,
193 (4th Cir. 2009). With this standard in mind, the Court turns to
whether the plaintiffs have adequately pled a claim of “deliberate
intent.”
IV.
The

West

Virginia’s

Workers’

Compensation

Act

generally

immunizes covered employers from employee suits for “damages at
common law or by statute” resulting from work-related injuries. W.
Va. Code § 23-2-6. An employer loses this immunity, however, when
it acts with “deliberate intention,” id. § 23-4-2(d)(2), and an
employee may file an action for damages in excess of workers’
compensation benefits. Id. § 23-4-2(c).
A.
Subsections (d)(2)(i) and (d)(2)(ii) of § 23-4-2 provide two
distinct methods of proof by which a plaintiff may establish that
an employer acted with “deliberate intention.” Under (d)(2)(i), a
plaintiff must show that the employer “acted with a consciously,
subjectively and deliberately formed intention to produce the
specific result of injury or death to an employee. This standard

4

WILLIAMS v. SCHAUENBURG

1:11CV60

MEMORANDUM OPINION AND ORDER
requires a showing of an actual specific intent . . . .” Id.
§ 2(d)(2)(i).
Here, the plaintiffs have asserted their claim pursuant to the
alternative subsection (d)(2)(ii), which requires the employee to
prove

five

statutory

elements

in

order

to

defeat

employer

immunity.2 The Supreme Court of Appeals of West Virginia has held

2

Specifically, an employee must prove:

(A) That a specific unsafe working condition existed in the
workplace which presented a high degree of risk and a strong
probability of serious injury or death;
(B) That the employer, prior to
knowledge of the existence of the
condition and of the high degree
probability of serious injury or
specific unsafe working condition;

the injury, had
specific unsafe
of risk and the
death presented

actual
working
strong
by the

(C) That the specific unsafe working condition was a violation
of a state or federal safety statute, rule or regulation,
whether cited or not, or of a commonly accepted and well-known
safety standard within the industry or business of the
employer, as demonstrated by competent evidence of written
standards or guidelines which reflect a consensus safety
standard in the industry or business, which statute, rule,
regulation or standard was specifically applicable to the
particular work and working condition involved, as contrasted
with a statute, rule, regulation or standard generally
requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth
in subparagraphs (A) through (C), inclusive, of this
paragraph, the employer nevertheless intentionally thereafter
exposed an employee to the specific unsafe working condition;
and
(E) That the employee exposed suffered serious compensable
injury or compensable death as defined in section one, article
four, chapter twenty-three whether a claim for benefits under
this chapter is filed or not as a direct and proximate result

5

WILLIAMS v. SCHAUENBURG

1:11CV60

MEMORANDUM OPINION AND ORDER
that “to establish ‘deliberate intention’ in an action brought
pursuant to W. Va. Code § 23-4-2(d)(2)(ii), a plaintiff . . . must
offer evidence to prove each of the five specific statutory
requirements.” Ramey v. Contractor Enters., Inc., 693 S.E.2d 789,
794 (W. Va. 2010) (internal citations omitted).
Schauenburg

argues

only

that

the

plaintiffs

failed

to

adequately plead the second of the five elements, which requires
the employee to show:
That the employer, prior to the injury, had actual
knowledge of the existence of the specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by the
specific unsafe working condition.
W. Va. Code § 23-4-2(d)(2)(ii)(B). According to Schauenburg, the
plaintiffs have failed to allege that it had “actual knowledge” of
the existence of a specific unsafe working condition and its
potential risks. See id.
B.
The Supreme Court of Appeals of West Virginia has described
the “actual knowledge” standard as “a high threshold that cannot be
successfully met by speculation or conjecture.” Munmaw v. U.S.
Silica Co., 511 S.E.2d 117, 123 (W. Va. 1998). Moreover, “[t]his

of the specific unsafe working condition.

§ 2(d)(2)(ii).
6

WILLIAMS v. SCHAUENBURG

1:11CV60

MEMORANDUM OPINION AND ORDER
requirement is not satisfied merely by evidence that the employer
reasonably

should

have

known

of

the

specific

unsafe

working

condition and of the strong probability of serious injury or death
presented by that condition.” Id. “Instead, it must be shown that
the employer actually possessed such knowledge.” Id.
In support of its argument that the complaint fails to allege
“actual knowledge” of an unsafe working condition, Schauenburg
focuses exclusively on the wording of the complaint, contending
that,

because

appreciation”
defendant’s

it

used

instead
awareness

the
of
of

words

“actual
an

“subjective
knowledge”

unsafe

realization
to

working

and

describe

the

condition

the

plaintiffs’ claim fails. 2d Am. Compl. ¶¶ 12-13. Schauenburg bases
this contention on the argument that the 2005 amendment to the Act,
which replaced the words “subjective realization and appreciation”
in § 2(d)(2)(ii)(B) with “actual knowledge,” created a heightened
standard

no

longer

satisfied

by

pleadings

of

a

“subjective

realization and appreciation.”
As Judge Copenhaver of the United States District Court for
the Southern District of West Virginia recently pointed out,
however, this amendment merely reflected our legislature’s adoption
of

the

state

courts’

existing

realization and appreciation”:

7

interpretation

of

“subjective

WILLIAMS v. SCHAUENBURG

1:11CV60

MEMORANDUM OPINION AND ORDER
The legislature amended § 23-4-2(d)(2)(ii)(B) in 2005,
substituting the language “[t]hat the employer, prior to
the injury, had actual knowledge of the existence of the
specific unsafe working condition,” in the place of
“[t]hat the employer had a subjective realization and
appreciation of the existence of the specific unsafe
working condition.” This change made no practical
difference in interpreting the statute, however, because
in Blevins the West Virginia Supreme Court of Appeals
read
the
terms
“subjective
realization”
and
“appreciation” to require a showing of “actual
knowledge.”
Skaggs v. Kroger Co., 788 F. Supp. 2d 501, 507 n.6 (S.D.W. Va.
2011) (quoting Blevins v. Beckley Magnetite, Inc., 408 S.E.2d 385,
385 (W. Va. 1991). Therefore, although the plaintiffs’ use of
outdated statutory language may be a scrivener’s error, it is not
a fatal one.
The second amended complaint alleges that “[t]he defendant
designed and manufactured the machine and implemented the operating
procedures,

resulting

in

the

subjective

knowledge”

of

unsafe

working conditions. 2d Am. Compl. ¶ 13. It also alleges that
Williams “told his supervisor that he did not feel he was ready to
operate the machine after the brief period of training, which
consisted of observing another employee operate the machine.” Id.
¶ 14.
Other district courts in West Virginia that have analyzed
similar factual allegations have concluded that they constitute a
sufficient

claim

of

“actual

knowledge.”
8

In

Kirkhart

v.

PPG

WILLIAMS v. SCHAUENBURG

1:11CV60

MEMORANDUM OPINION AND ORDER
Industries, Inc., for example, the court held that a plaintiff had
alleged “actual knowledge” where the complaint stated only that a
defendant modified a piece of machinery in a way that resulted in
injury. No. 5:06CV21, 2006 WL 3692643, at *5 (N.D.W. Va. Dec. 12,
2006) (Stamp, J.). Because the defendant had made the modifications
itself,

Judge

Stamp

concluded

that

“it

cannot

be

said

to

a

certainty that [the defendant] had no actual knowledge of any
potential danger . . . .” Id. Furthermore, in Skaggs, Judge
Copenhaver found that an employer’s knowledge of an employee’s lack
of adequate training on a piece of equipment constituted “actual
knowledge” of an unsafe working condition. 788 F. Supp. 2d at 508.
Here, like the plaintiff in Kirkhart, the plaintiffs have
alleged that Schauenburg manufactured the machine and thus was
aware

of

its

allegedly

unsafe

design

and

other

defects.

Additionally, as did the plaintiff in Skaggs, they allege that
Williams told his supervisor he felt his brief training was
inadequate to operate the machine. From a pleading perspective,
both

of

these

requirement

of

allegations
§

satisfy

2(d)(2)(ii)(B),

the

alleging

“actual
as

they

knowledge”
do

that

Schauenburg not only reasonably should have known, but actually did
know, of an unsafe working condition. See Munmaw, 511 S.E.2d at
123. Accordingly, the Court concludes that the plaintiffs have

9

WILLIAMS v. SCHAUENBURG

1:11CV60

MEMORANDUM OPINION AND ORDER
adequately

pled

the

five

elements

of

W.

Va.

Code

§

23-4-

2(d)(2)(ii), and that their complaint properly states a “deliberate
intention” claim under the Act.
Schauenburg’s

remaining

arguments

regarding

the

products

liability and loss of consortium claims are contingent on a finding
that the plaintiffs had failed to state a claim under W. Va. Code
§ 23-4-22(d)(2). Because the Court finds that the plaintiffs have
stated such a claim, it DENIES the defendant’s motion to dismiss in
its entirety.
In conclusion, for the reasons discussed, the Court GRANTS the
plaintiffs’ motion to amend their complaint (dkt. no. 17), DENIES
AS MOOT the defendant’s motions to dismiss the complaint (dkt. no.
4)

and

the

amended

complaint

(dkt.

no.

10),

and

DENIES

the

defendant’s motion to dismiss the second amended complaint (dkt.
no. 29).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: December 23, 2011
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

10