Blythe v. Consol Energy, Inc. et al

Filing 26

MEMORANDUM AND OPINION AND ORDER GRANTING MOTION TO REMAND AND DENYING WITHOUT PREJUDICE MOTION TO DISMISS: 7 Motion to Dismiss is Denied without prejudice; 9 Motion to Remand to State Court is granted. This matter is remanded to the Circuit Court of Marshall County, WV. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 2/7/13. (copy to counsel of record via CM/ECF; copy mailed to Clerk of Circuit Court of Marshall County, WV.)(rjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GENE ANN MARIE BLYTHE, as
Administratrix of the Estate
of CHARLES RICHARD McINTIRE,
deceased,
Plaintiff,
v.

Civil Action No. 5:12CV95
(STAMP)

CONSOLIDATION COAL COMPANY
and JOSEPH ONTKO,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO REMAND AND
DENYING WITHOUT PREJUDICE MOTION TO DISMISS
I.

Procedural History

The plaintiff, administratrix of the estate of her father,
Charles Richard McIntire (“Mr. McIntire”), filed this civil action
in the Circuit Court of Marshall County, West Virginia.

The

complaint raises two counts of deliberate intent related to the Mr.
McIntire’s death on October 17, 2011.

Count I is a claim for

deliberate intent against defendant Consolidation Coal Company
(“Consol”), Mr. McIntire’s former employer, and Count II is a claim
for deliberate intent against defendant Joseph Ontko (“Ontko”), Mr.
McIntire’s supervisor on the day of his death.
The defendants removed this civil action to this Court on the
basis of diversity, pursuant to 28 U.S.C. §§ 1332(a) and 1441(a).
The defendants acknowledge that, as the plaintiff has framed her
complaint, complete diversity of citizenship between the parties
does not exist, because defendant Ontko and the plaintiff are both

residents and citizens of Ohio.1

However, the defendants support

their claim of diversity jurisdiction by arguing that defendant
Ontko

has

been

fraudulently

joined

to

this

case,

and

his

citizenship should thus be disregarded for jurisdictional purposes.
In response, the plaintiff filed a motion for remand on the basis
of her assertion that defendant Ontko has not been fraudulently
joined in this case.

Defendant Ontko has also filed a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
wherein he makes arguments similar to those raised to support the
defendants’ notice of removal.
Both the plaintiff’s motion for remand and defendant Ontko’s
motion

to

dismiss

have

been

fully

briefed

and

are

ripe

for

disposition by this Court. For the reasons that follow, this Court
finds that defendant Ontko has not been fraudulently joined to this
civil action, and thus remands the case to the Circuit Court of
Marshall County, West Virginia.

Further, because this Court finds

that it lacks subject matter jurisdiction over the merits of this
case,

defendant

Ontko’s

motion

to

dismiss

is

denied

without

prejudice subject to refiling in state court if appropriate to do
so.

1

All parties agree that complete diversity exists between the
plaintiff, a citizen of Ohio, and defendant Consol, a Delaware
corporation with it principal place of business located in
Pittsburgh, Pennsylvania.
2

II.

Facts2

On October 17, 2011, Mr. McIntire was employed by defendant
Consol as a timberman/laborer and was working at the Shoemaker Mine
in Marshall County, West Virginia.

Mr. McIntire was working under

supervisor defendant Ontko, who was employed by defendant Consol as
a section foreman at the Shoemaker Mine that day.

Defendant Ontko

directed Mr. McIntire and other members of a work crew to clean up
material that had fallen at 15+20 block of the main line haulage
which was located by the River Portal of the mine.

After arriving

at the 15+20 block, the work crew determined that, due to the size
and weight of the fallen rocks, a ditch digger would be necessary
to move them. Defendant Ontko transported Mr. McIntire to retrieve
the ditch digger and, after learning that Mr. McIntire’s training
for the ditch digging machine may have expired, provided Mr.
McIntire with task training on the machine.
Following this task training, Mr. McIntire began to operate
the ditch digger, which was track mounted and powered by an
overhead 300 volt D.C. trolley wire through a trolley pole to the
electric controller box on the machine.

However, at the Shoemaker

Mine there exists a “jump area” along the track where a gap exists
in the trolley wire.

In order to pass through the jump area with

the ditch digger, the plaintiff asserts that it was common practice
at the mine to pick up speed, grab the trolley pole before it left

2

For the purposes of this opinion, this Court adopts, for the
most part, the facts as set forth by the plaintiff in her
complaint.
3

the wire, and to coast across the jump area, before reattaching the
trolley pole to the trolley wire upon passing through the gap in
the wire.

However, the plaintiff further asserts that the ditch

digger was often unsuccessful in fully coasting through the jump
area, and at those times, the operator would use a power cord kept
along the track in order to provide power to the machine to fully
propel it across the jump area.
When Mr. McIntire was operating the ditch digger on October
17, 2011, it stopped before crossing the jump area, and Mr.
McIntire attempted to use the power cord to provide power to the
ditch digger.

In order to connect the power cord, Mr. McIntire

exited the operator’s compartment, and connected the cord to the
ditch digger and the trolley wire. Upon connecting the cord to the
energized wire, the ditch digger lurched forward, striking Mr.
McIntire and crushing him underneath the machine, thereby causing
his death. The plaintiff now claims that the accident which caused
Mr. McIntire’s death was the direct and proximate result of the
actions, omission, and conduct of the defendants, and that these
actions and omissions amount to “deliberate intention.”
III.
A.

Applicable Law

Motion to remand
A defendant may remove a case from state court to federal

court in instances where the federal court is able to exercise
original jurisdiction over the matter.

28 U.S.C. § 1441.

Federal

courts have original jurisdiction over primarily two types of

4

cases: (1) those involving federal questions under 28 U.S.C. § 1331
and (2) those involving citizens of different states where the
amount in controversy exceeds $75,000.00, exclusive of interests
and costs pursuant to 28 U.S.C. § 1332(a).

The party seeking

removal bears the burden of establishing federal jurisdiction. See
Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151
(4th Cir. 1994). Removal jurisdiction is strictly construed due to
“significant federalism concerns,” implicated by abrogating a state
court

of

the

jurisdiction.

ability
Id.

to

decide

a

case

over

which

it

has

Thus, if federal jurisdiction is doubtful, the

federal court must remand.

Id.

However, when a defendant removes a case that, on its face,
does not present complete diversity, courts are permitted to
utilize the doctrine of fraudulent joinder to examine the record in
more depth to determine whether the non-diverse parties are real
parties in interest to the action.
457, 461 (4th Cir. 1999).

Mayes v. Rapoport, 198 F.3d

Under the doctrine of fraudulent

joinder, a defendant may remove a case on the basis of diversity
jurisdiction even if a non-diverse defendant is a party to the
case, so long as the removing party can prove that the non-diverse
defendant was fraudulently joined to the action.

Id.

Fraudulent

joinder “effectively permits a district court to disregard, for
jurisdictional purposes, the citizenship of certain nondiverse
defendants, assume jurisdiction over a case, dismiss the nondiverse
defendants, and thereby retain jurisdiction.”

5

Id.

IV.
A.

Discussion

Motion to remand
In their notice of removal, the defendants argue that this

Court has jurisdiction over this case because defendant Ontko, who
along with the plaintiff is a resident of Ohio, was fraudulently
joined in this action.

To establish fraudulent joinder, “the

removing party must demonstrate either ‘outright fraud in the
plaintiff’s pleading of jurisdictional facts’ or that ‘there is no
possibility that the plaintiff would be able to establish a cause
of action against the in-state defendant in state court.’” Hartley
v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (quoting
Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993))
(emphasis in original).

A claim of fraudulent joinder places a

heavy burden on the defendants.

Marshall, 6 F.3d at 232.

“[T]he

defendant must show that the plaintiff cannot establish a claim
against the nondiverse defendant even after resolving all issues of
fact and law in the plaintiff’s favor. A claim need not ultimately
succeed to defeat removal; only a possibility of right to relief
need be asserted.”

Id. at 232-33 (internal citations omitted).

Further, the burden is on the defendants to establish fraudulent
joinder by clear and convincing evidence. Rinehart v. Consolidated
Coal Co., 660 F. Supp. 1140, 1141 (N.D. W. Va. 1987).
Here, the defendants do not allege outright fraud in the
plaintiff’s pleadings.

The defendants rather argue that, based

upon the relevant statutory provision, deliberate intent liability

6

cannot attach to defendant Ontko as a matter of law. Therefore, to
defeat the plaintiff’s motion to remand, the defendants must prove
by clear and convincing evidence, that there is no possibility that
the plaintiff could prevail against defendant Ontko based upon her
claim of deliberate intent.

The defendants have failed to make

this showing.
Count II of the plaintiff’s complaint, the only claim raised
against defendant Ontko, asserts a state law claim of deliberate
intent pursuant to West Virginia Code § 23-4-2(d)(2)(ii).

The

statutory cause of action for “deliberate intent” represents an
exception to the general immunity from liability for all employee
work-related injuries extended to employers and co-workers by the
West Virginia worker’s compensation statute.

See W. Va. Code

§§ 23-2-6 and 23-2-6a and W. Va. Code § 23-4-2(d)(1) (explaining
the complete immunity provided for by the Worker’s Compensation
Act, as well as the specific exception for deliberate intent
claims).

“Two separate and distinct methods of proving deliberate

intent”

are

provided

in

the

statute,

§ 23-4-2(d)(2)(i) and § 23-4-2(d)(2)(ii).
408 S.E.2d 321, 326 (W. Va. 1991).

West

Virginia

Code

Sias v. W-P Coal Co.,

The plaintiff has raised a

claim against defendant Ontko under § 23-4-2(d)(2)(ii).

That

subsection provides for deliberate intent liability as follows:
(2) The immunity from suit provided under this section
and sections six [23-2-6] and six-a [23-2-6a] . . . may
be lost only if the employer or person against whom
liability is asserted acted with “deliberate intention.”
This requirement may be satisfied only if:

7

(ii) The trier of fact determines . . . that
all of the following facts are proven:
(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 the
injury had actual knowledge of the
existence of the 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;
(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, . . .
(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 a
direct and proximate result of the
specific unsafe working condition.
W. Va. Code § 23-4-2(d)(2)(ii).
The defendants argue that, under the deliberate intent claim
as it is defined by the above section, liability can only attach to
an employer, and thus, because defendant Ontko is a co-worker and

8

does not qualify as an employer, he cannot be held liable under
§ 23-4-2(d)(2)(ii) as a matter of law.

As such, because the only

cause of action alleged against him is a claim under that section,
he has been fraudulently joined to this civil action.
At the center of the defendants’ argument is the differing
language in § 23-4-2(d)(2)(ii) from that in the previous section,
§ 23-4-2(d)(2)(i), which provides the alternative method of proof
of “deliberate intention” to that in subsection (ii).

West

Virginia Code § 23-4-2(d)(i) allows for deliberate intent to be
proven if “it is proved that the employer or other person against
whom liability is asserted acted with a consciously, subjective and
deliberately formed intention to produce the specific result of
injury or death to an employee . . . .” (emphasis added).

The

defendants argue that, because subsection (i) specifically states
that deliberate intent can be proven under that section against
both “employer[s]” and “other person[s] against whom liability is
sought,” while subsection (ii) refers only to the knowledge, intent
and actions of “employers,” the West Virginia legislature could
only have intended to allow liability against employers under
subsection (ii).

W. Va. Code §§ 23-4-2(d)(2)(i) and (ii).

The defendants further argue that the immunity granted by the
worker’s compensation statute is intended to be interpreted very
broadly, and the exceptions thereto, as narrowly as possible. They
assert that § 23-4-2(d)(1) represents evidence of this in that it
states the following: “[i]t is declared that enactment of this

9

chapter and the establishment of the workers’ compensation system
. . . was and is intended to remove from the common law tort system
all disputes between or among employers and employees regarding the
compensation to be received for injury or death to an employee
except as expressly provided in this chapter . . .” The defendants
say that, because subsection (ii) does not “expressly provide” for
liability of co-workers, such liability does not exist.
The plaintiff, on the other hand, argues that co-worker
liability is possible under both theories of deliberate intent
liability.

In

support

of

her

theory,

she

points

to

the

introductory paragraph of the two methods of proof: § 23-4-2(d)(2).
This introductory section applies to both subsections (i) and (ii),
and asserts, “[t]he immunity from suit provided under this section
and sections six [§ 23-2-6] and six-a [§ 23-2-6a] . . . may be lost
only if the employer or person against whom liability is asserted
acted with ‘deliberate intention.’”
section

six-a,

to

which

subsection

The plaintiff notes that
(d)(2)

explicitly

refers,

creates immunity for “officers, managers, agents, representatives
or employees” of employers.

W. Va. Code § 23-2-6a.

The plaintiff

also points to subsection (d)(2)’s use of both “employer[s]” and
“person[s] against whom liability is asserted,” and argues that the
inclusion of references to both § 23-2-6a, and “person[s] against
whom liability is asserted” is indicative of the intention for coworker

liability

to

attach

under

deliberate intention.

10

both

methods

of

proof

of

Both the plaintiff and the defendants offer case law which
supports their reading of the statutory language, and after a
review of the relevant cases in this district, in the United States
District Court for the Southern District of West Virginia, as well
as in the courts of the State of West Virginia, it is clear that
there is a significant split on this issue among courts that have
addressed it.

See Williams v. Harsco Corp., No. 1:10cv206, 2011

U.S. Dist. LEXIS 79858 (N.D. W. Va. July 22, 2011); Weekly v. Olin
Corp.,

681

F.

Supp.

346

(N.D.

W.

Va.

1987);

Rinehart

v.

Consolidated Coal Co., 660 F. Supp. 1140 (N.D. W. Va. 1987);
Bledsoe v. Brooks Run Mining Co., LLC, No. 5:11cv464, 2011 U.S.
Dist. LEXIS 127885 (S.D. W. Va. Nov. 4, 2011); Anderson v. Am.
Electric Power Svc. Corp., No. 06-c-770 (Kanawha C. W. Va. Cir. Ct.
Apr. 10, 2007); Knight v. Baker Material Handling Corp., No. 01-c39-1 (Harrison C. W. Va. Cir. Ct. Sept. 26, 2001); but see Fincham
v. Armstrong World Industries, Inc., No. 2:08cv101, 2008 U.S. Dist.
LEXIS 123228 (N.D. W. Va. Nov. 7, 2008); Evans v. CDX Servs., LLC,
528 F. Supp. 2d 599 (S.D. W. Va. 2007); Hager v. Cowin & Co., Inc.,
No. 2:10cv1138, 2011 U.S. Dist. LEXIS 61471 (S.D. W. Va. June 3,
2011); King v. Sears Roebuck & Co., No. 1:10-1024, 2011 U.S. Dist.
LEXIS 14578 (S.D. W. Va. Feb. 14, 2011); Furrow v. Arch Coal, Inc.,
Civil Action No. 09-c-152 (Mingo C. W. Va. Cir. Ct. Oct. 7, 2009).
It is further necessary to note that the West Virginia Supreme
Court of Appeals has not spoken on the matter and, thus, has

11

provided no binding precedent for any court attempting to determine
it.
This Court will note that the undersigned’s opinion in Hoffman
v. Consolidated Coal Co., No. 1:10cv83, 2010 U.S. Dist. LEXIS
127028 (N.D. W. Va. Dec. 1, 2010), is cited by the plaintiff as
support for her interpretation of § 23-4-2(d)(2)(ii) as allowing
for co-worker liability.

However, Hoffman was a case wherein the

plaintiff had raised claims under both § 23-4-2-(d)(2)(i) and
§ 23-4-2(d)(2)(ii), and this Court did not engage in discussion as
to whether a claim brought only under § 23-4-2(d)(2)(ii) was viable
against a co-worker. Id. at *12-*13. Accordingly, this Court does
not find its opinion in Hoffman to be helpful in the determination
before it today.
After a thorough review of the above-cited cases addressing
co-worker liability under § 23-4-2(d)(2)(ii), the arguments of the
parties, and the language of the statute itself, this Court finds
that the plaintiff has alleged a possible claim against defendant
Ontko in this case. This Court has considered the arguments of the
defendants, as well as the opinions advanced by the courts finding
otherwise than this Court finds today. These arguments concentrate
upon giving effect and attaching meaning to the differing language
of subsections (i) and (ii), and argue that a failure to do so
renders the differences in language meaningless. See, e.g., Evans,
528 F. Supp. 2d at 605.

This Court recognizes that such an

approach is in line with accepted rules of statutory construction.

12

See Mitchell v. City of Wheeling, 502 S.E.2d 182, 185 (W. Va.
1998).
However, after review, this Court believes that application of
this approach to the relevant statutory sections actually lends
itself to the opposite result.

While the language of subsection

(i) certainly differs from that of subsection (ii), to interpret
the meaning of subsection (ii) as the defendants suggest, requires
this Court to read the aforementioned introductory paragraph in
§

23-4-2(d)(2)

out

of

the

statute.

As

outlined

above,

§ 23-4-2(d)(2) explicitly states that, under both § 23-4-2(d)(2)(i)
and § 23-4-2(d)(2)(ii), “[t]he immunity from suit provided under
this section and under sections six and six-a, article two of this
chapter may be lost only if the employer or person against whom
liability is asserted acted with “deliberate intention.”

It is

noted that the section six-a to which § 23-4-2(d)(2) refers is
§ 23-2-6a, which creates an exemption from liability for “officers,
managers, agents, representatives or employees” of employers.

In

that section, the immunity extended to such co-workers is described
as exactly the same as that extended to employers.

See W. Va. Code

§ 23-2-6a.
Accordingly, no matter which way this Court interprets the
relevant language, some portion of the statute will not be given
effect.

As

such,

it

does

not

seem

reasonable

to

adopt

an

interpretation which would render an entire subsection of the
statute

meaningless.

Further,

13

as

noted

above,

the

immunity

extended to co-workers is exactly the same as that given to
employers, and as such, it is not reasonable to assume that the
loss of that immunity would differ at all for co-workers and
employers.

See

Williams, 2011 U.S. Dist. LEXIS 79858 *7-*8

(examining Kanawha Circuit Court’s decision in Anderson, which
determined that no greater immunity for co-workers could be read
into

the

statute

based

upon

§

23-4-2(d),

and

finding

that

interpretation “eminently reasonable.”)
Further, the only determination with which this Court is
charged at this point is whether a “possible” claim has been
alleged against defendant Ontko. As Judge Irene M. Keeley found in
her opinion in Williams, whether or not co-worker liability can
attach based upon a claim under § 23-4-2(d)(ii) is a “debatable
point of state law that remains unresolved by the West Virginia
Supreme Court of Appeals.”

Id. at *9.

Accordingly, because the

standard on remand requires this Court to resolve all “‘legal
uncertainties’” in favor of the plaintiff, this determination must
be so resolved, and a “glimmer of hope” exists that defendant Ontko
may be found liable under the claim that plaintiff has raised
against him.

Id. at *9-*10 (quoting Hartley v. CSX Transp., 187

F.3d 422, 425). The plaintiff’s motion for remand is thus granted.
B.

Motion to dismiss

Based upon the foregoing, this Court determines that it lacks
subject

matter

jurisdiction

to

plaintiff’s claims raised herein.

14

address

the

merits

of

the

Accordingly, it is without

jurisdiction to decide defendant Ontko’s pending motion to dismiss.
This motion to dismiss is thus denied without prejudice subject to
refiling in state court if appropriate to do so.
V.

Conclusion

For the reasons stated above, the plaintiff’s motion to remand
is GRANTED. Defendant Joseph Ontko’s motion to dismiss pursuant to
Federal

Rule

PREJUDICE.

of

Civil

Procedure

12(b)(6)

is

DENIED

WITHOUT

Accordingly, this matter is hereby REMANDED to the

Circuit Court of Marshall County, West Virginia.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the Clerk of
the Circuit Court of Marshall County, West Virginia.

Pursuant to

Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter
judgment on this matter.
DATED:

February 7, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

15