Dotson et al v. Elite Oil Field Services, Inc. et al

Filing 32

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S PARTIAL MOTION TO DISMISS: It is ORDERED that Defendant's 22 Partial Motion to Dismiss for failure to State a Claim is hereby GRANTED and Dotsons' claim under WV Code 23-4-2(d)(2)(i) is DISMISSED WITH PREJUDICE. The Court directs the Clerk to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 3/24/15. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DONALD DOTSON, CHRISTINE DOTSON,
H.G.D., a minor, D.D.IV, a minor,
and A.H., a minor,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:15CV7
(Judge Keeley)

ELITE OIL FIELD SERVICES, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]
Pending before the Court is the partial motion to dismiss
(Dkt. No. 22) filed by the defendant, Elite Oil Field Services,
Inc. (“Elite Oil”).

For the following reasons, the Court GRANTS

Elite Oil’s motion and DISMISSES WITH PREJUDICE the plaintiffs’
claim under W. Va. Code § 23-4-2(d)(2)(i).
I. BACKGROUND
Plaintiff Donald Dotson (“Dotson”) worked for Elite Oil as a
semi-tractor operator.

In that capacity, Dotson hauled steel

containers or boxes of mud from oil and gas well operations to a
designated disposal facility.

To that end, Elite assigned Dotson

to a 2000 model T-800 Kenworth tractor hauling a roll-off trailer.
As of August 27, 2013, Elite had contracted with a third-party
to haul mud from a gas well drilling operation near Jacksonburg,
West Virginia, and had assigned Dotson to that job.

Jeffrey Hess

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

(“Hess”), who was Dotson’s supervisor and a truck boss for Elite,
was responsible for assigning Elite’s vehicles to jobs and to
drivers, and managing the scheduling of vehicle maintenance and
other repairs.1
On August 16 or 17, 2013, Dotson was returning from dropping
off a load.

He was operating the truck with an empty trailer on

Route 50 in Harrison County, West Virginia, when the truck’s brakes
overheated, began to smoke, and caught on fire. Dotson stopped the
vehicle, called Hess, and explained to him that the brakes had
caught on fire.

Hess arranged for Dotson to be picked up, for the

truck to be towed, and for the necessary repairs to be made.
Dotson alleges that, rather than having the necessary repairs
made, Hess assigned the truck to another driver, who reported
transmission damage.

On August 22, 2013, the truck was taken to a

repair

Preston

facility

repaired.

in

County

to

have

the

transmission

Once the transmission was repaired, Hess told Dotson

that the truck was fixed, and directed him to take the truck to
Jacksonburg to haul mud.

1

Hess was originally named as a defendant, but was dismissed
from the case as fraudulently joined on March 4, 2015 (Dkt. No.
26).
2

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

On August 27, 2013, Dotson drove the truck to the drilling
pad, where it was loaded with a box filled with drilling mud.

As

Dotson began to drive the truck off the drilling site, which
required a descent down a haul road with an approximately 14%
downhill grade, the truck’s brakes failed, and the truck careened
out of control.

Eventually, it crashed into a ditch or creek bed

on the right side of the road, resulting in injuries to Dotson’s
head and a fracture and dislocation of his left hip.
On December 19, 2014, plaintiffs Donald Dotson, Christine
Dotson, H.G.D., a minor, D.D., IV, a minor, and A.H., a minor (“the
Dotsons”), sued Elite Oil and Hess in the Circuit Court of Harrison
County, West Virginia (Dkt. No. 3-1).

On January 16, 2015, Elite

Oil and Hess filed a notice of removal in this Court based on
diversity jurisdiction (Dkt. No. 1).
On January 22, 2015, the Dotsons filed a motion to remand the
case to state court (Dkt. No. 5).

On February 5, 2015, Elite and

Hess responded, opposing the motion on the ground that Hess had
been fraudulently joined (Dkt. No. 11). Thereafter, on January 23,
2015, Hess filed a motion to dismiss, alleging that the Dotsons’
complaint failed to assert a deliberate intention claim cognizable
under West Virginia law (Dkt. No. 9 at 2).
3

On March 4, 2015, the

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

Court denied the Dotsons’ motion to remand, granted Hess’ motion to
dismiss, and dismissed Hess from the case (Dkt. No. 26).
Prior to that, however, the Dotsons amended their complaint as
of right on February 9, 2015 (Dkt. No. 14), to assert a claim under
W. Va. Code § 23-4-2(d)(2)(i) (“Section I claim”). On February 23,
2015, Elite Oil filed a partial motion to dismiss that portion of
the Dotsons’ amended complaint.

On March 9, 2015, the Dotsons

responded to Elite Oil’s motion, and on March 17, 2015, Elite Oil
filed a reply.

The motion is now fully briefed and ready for

review.2
II. MOTION TO DISMISS
A. Standard of Review
In reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual allegations contained in
the complaint.’”

Anderson v. Sara Lee Corp., 508 F.3d 181, 188

(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). However, while a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his

2

The Dotsons also alleged a claim against Elite Oil under the
second prong, W. Va. Code § 23-4-2(d)(2)(ii) (“Section II claim”).
Elite Oil has not sought dismissal of that claim (Dkt. No. 14).
4

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

entitlement

to

relief

requires

more

than

mere

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do.
555 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

Indeed, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation.”

Papasan v.

Allain, 478 U.S. 265, 286 (1986).
In considering whether the facts alleged are sufficient, “a
complaint must contain ‘enough facts to state a claim to relief
that is plausible on its face.’”
(quoting

Twombly,

550

U.S.

at

Anderson, 508 F.3d at 188

547).

“A

claim

has

facial

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). This requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id.

B. The Deliberate Intention Statute
The West Virginia Workers’ Compensation Act generally provides
broad immunity to qualifying employers against employees’ tort
actions.

See W. Va. Code § 23-2-6.

statute,

however,

carves

out

an

5

This “deliberate intention”
exception

to

that

immunity,

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

allowing an employee to recover from an employer or “person against
whom liability is asserted” under either of two prongs.

W. Va.

Code § 23-4-2(d)(2); Syl. Pt. 1, Mayles v. Shoney’s, Inc., 405
S.E.2d 15 (1990).
Under the first prong, § 23-4-2(d)(2)(i), an employee can
satisfy the statutory requirements by proving “that the employer or
person against whom liability is asserted acted with a consciously,
subjectively and deliberately formed intention to produce the
specific result of injury or death to an employee.”

The employee

must show an actual, specific intent and may not satisfy the
standard by allegation or proof of:
(A)Conduct

which

produces

a

result

that

was

not

specifically intended;
(B)[C]onduct which constitutes negligence, no matter how
gross or aggravated; or
(C)[W]illful, wanton or reckless misconduct.
W. Va. Code § 23-4-2(d)(2)(i).

An employee can sue either an

employer or a supervisor or co-employee using a Section I claim.
See W. Va. Code § 23-4-2(d)(2)(i).
To properly plead a prima facie Section I claim, the employee
must

allege

that

“an

employer
6

‘acted

with

a

consciously,

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

subjectively and deliberately formed intention to produce the
specific result of injury[.]’” Syl. Pt. 9, Tolliver v. Kroger Co.,
498

S.E.2d

702,

715

(W.

Va.

1997).

“‘Neither

negligence,

recklessness nor wilful misconduct satisfies the requirements of
this subsection–instead, . . . a plaintiff must prove that a . . .
person granted immunity actually tried to injure or kill him.’”
Williams v. Harsco Corp., 2011 WL 3035272 at *2 (N.D.W. Va. July
22, 2011) (Keeley, J.) (quoting Syl. Pts. 7-9, Tolliver, 498 S.E.2d
at 702).
III.

ANALYSIS

In their amended complaint, the Dotsons allege that Elite Oil
“acted with a consciously, subjectively and deliberately formed
intention to produce the specific result of injury or death to
Plaintiff Donald Dotson, an employee.”

(Dkt. No. 14 at 5).

They

claim that Elite Oil’s deliberate intention to harm or kill Dotson
can be inferred from “the fact that [Hess] utilized deception in
order to place [Dotson] on a very steep roadway with a very heavy
load in a truck knowing that it had a faulty breaking system, which
breaking system [Hess] intentionally failed to have evaluated and
repaired.”

Id.

7

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

Elite Oil contends that the Dotsons’ Section I claim fails as
a matter of law because their factual allegations, even if true,
fall short of the conduct required to prevail on such a claim (Dkt.
No. 22 at 2).

Specifically, Elite Oil argues that the amended

complaint does not contain any plausible allegations that it tried
to kill or injure Dotson (Dkt. No. 23 at 6).
In response, the Dotsons argue that the amended complaint
“contains

copious

sufficient.”

fact-based

allegations

(Dkt. No. 29 at 1).

that

are

absolutely

They reiterate that Hess was

responsible for maintaining Dotson’s truck, was directly aware that
the truck’s brakes had failed, failed to have the brakes repaired,
lied to Dotson about the braking system, and assigned Dotson to a
job that he knew would involve Dotson carrying a heavy load down a
steep hill.

Id. at 2.

In its reply, Elite Oil refers to authority from the Supreme
Court of Queens County, New York, Feng Gao v. Jing Hong Li, 932
N.Y.S.2d 760 at *1 (NY. Sup. Ct. 2011), where the plaintiff was
involved in a similar accident after the brakes in his delivery van
failed.

He alleged that his employer knew that his delivery van

had a defective brake vacuum pump, but nevertheless deliberately
and intentionally failed to repair the brake defects, putting his
8

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

life at risk.

Id.

The plaintiff contended that his cause of

action for an unspecified “intentional tort” fell outside of the
workers’ compensation law because his injuries resulted from his
employer’s intent to harm him.

Id.

The Supreme Court of Queens County noted that there was an
exception

to

New

York’s

workers’

compensation

scheme

for

intentional torts, but found that the plaintiff’s complaint failed
to

state

a

legally

intentional tort.

cognizable

Id. at *4.

cause

of

action

based

on

an

Despite the fact that the defendant

was aware that the brakes in the delivery van were defective, “the
complaint fails to contain sufficient facts to show that the
defendant’s failure to repair the brakes was a deliberate act
undertaken to injure this plaintiff in particular.”

Id.

Elite Oil argues that, like the plaintiff in Feng Gao, the
Dotsons have failed to sufficiently allege that its failure to
repair the brakes in Dotson’s truck was deliberately undertaken to
injure Dotson (Dkt. No. 31 at 3).

“According to [the Dotsons],

[Hess] did not lie with the specific intent to injure or kill
[Dotson].
avoid

Instead, [Hess’] motive for lying to [Dotson] was to

taking

‘the

properly.’” Id.

time,

effort

and

resources

to

do

his

job

Even after drawing every reasonable inference in
9

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

the Dotsons’ favor, Elite Oil argues that, at most, it is guilty of
willful misconduct, and not deliberate intention under Section I.
Id.
It is well-established that, to allege a plausible claim under
Section I, the Dotsons must assert that Elite Oil “acted with a
‘consciously, subjectively and deliberately formed intention to
produce the specific result of injury or death . . . .’” Hedrick v.
E.I. du Pont de Nemours and Co., 2013 WL 2422661 at *3 (S.D.W. Va.
June

3,

2013)

(emphasis

in

original)

(concluding

that

the

plaintiff’s section I claim was insufficiently pleaded because the
complaint contained no additional facts supporting the inference
that the defendant intended to injure or kill the plaintiff).
Although the Dotsons have recited the statutory elements of a
Section I claim, “a formulaic recitation of the elements of a cause
of action will not do.”

Bell Atl. Corp., 550 U.S. at 555.

The

Court looks to, and accepts as true, the factual allegations in the
amended complaint that Elite Oil, through Hess, 1) knew that the
brakes in Dotson’s truck had failed, 2) indicated to Dotson that
the brakes were fixed when they were not, and 3) assigned Dotson to
a job that required him to carry a heavy load down a steep road
(Dkt. No. 14 at 4-5).

See Anderson, 508 F.3d at 188.
10

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

The Dotsons’ allegations fall far short of the specific intent
to injure or kill required by Section I.
2422661 at *3.

See Hedrick, 2013 WL

At best, the Dotsons have alleged negligence or

recklessness, but not deliberate indifference.

Williams, 2011 WL

3035272 at *2. The Court finds Feng Gao persuasive, and finds that
the instant case presents similar facts.

Elite Oil may have

disregarded a substantial risk of harm to Dotson by knowingly
assigning him to a truck with defective brakes, but, nonetheless,
the

Dotsons

have

failed

to

allege

that

intentionally designed to injure Dotson.
N.Y.S.2d at *4.

such
See

behavior

was

Feng Gao, 932

Therefore, the Dotsons have failed to plead a

plausible Section I claim against Elite Oil.

See Anderson, 508

F.3d at 188.
IV. CONCLUSION
For the reasons discussed, the Court GRANTS Elite Oil’s
partial motion to dismiss and DISMISSES WITH PREJUDICE the Dotsons’
claim under W. Va. Code § 23-4-2(d)(2)(i).
It is so ORDERED.

11

DOTSON V. ELITE OIL FIELD SERVICES

1:15CV7

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS [DKT. NO. 22]

The Court directs the Clerk to enter a separate judgment
order, and to transmit copies of this order to counsel of record.
DATED: March 24, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

12