McGovern v. PPG Industries, Inc.

Filing 11

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [DKT. NO. 7] AND DISMISSING THE CASE WITH PREJUDICE: Granting 7 Motion to Dismiss; Clerk directed to enter separate Judgment. Signed by District Judge Irene M. Keeley on 9/30/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MICHAEL J. MCGOVERN,
Plaintiff,

v.

//

CIVIL ACTION NO. 5:14CV69
(Judge Keeley)

PPG INDUSTRIES, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 7]
AND DISMISSING THE CASE WITH PREJUDICE
Pending before the Court is the motion to dismiss with
prejudice (dkt. no. 7) filed by the defendant, PPG Industries, Inc.
(“PPG”).

For the following reasons, the Court GRANTS PPG’s motion

and DISMISSES the case with prejudice.
I. BACKGROUND
PPG is a Pennsylvania chemicals manufacturer that operates a
facility known as the “Natrium Plant” in Marshall County, West
Virginia.

The plaintiff, Michael McGovern (“McGovern”), works on

the “third line repackaging line” at the Natrium Plant, where he is
responsible for affixing lids to twenty-five gallon buckets of
chemicals.

McGovern alleges that PPG “fail[ed] to furnish [him]

with employment and a place of employment that was free from
recognized hazards that were likely to cause death or serious

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV69

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
injury”; “fail[ed] to properly train [him]”; “fail[ed] to conduct
a Job Safety Analysis (JSA) prior to the commencement of the work
being performed by [him] on December 23, 2011”; and, “fail[ed] to
adhere to all applicable repackaging line rules and guidelines,
develop

and

repackaging

implement
line,

proper

ensure

procedures

that

new

for

operating

bucket/lid

the

packaging

configuration and process that employees would use to package the
calcium hypochlorite was safe and ensure that repackaging line
safety protocols were in place.” (Dkt. No. 1 at 6-7).
McGovern further alleges that, on December 23, 2011, he was
performing his work, when, “as a result of the unreasonable amount
of force...and twisting motion required of [him], [he] injured his
right arm, elbow, wrist and/or shoulder.”

Id. at 5.

He claims

that, as a direct and proximate result of the “actions, omissions
and conduct of [PPG],” he suffered physical injury, lost wages and
benefits, and other special damages.

Id. at 8.

McGovern asserts

one count against PPG under West Virginia’s “deliberate intention”
statute, W. Va. Code § 23-4-29(d)(2)(ii).
The Court previously dismissed without prejudice McGovern’s
identical claim against PPG for failure to state a claim upon which
relief can be granted.

See McGovern v. PPG Industries, Inc., No.
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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
5:14CV6, 2014 WL 1408077 (N.D.W. Va. Apr. 11, 2014). In an attempt
to cure his deficient pleading, McGovern refiled his complaint with
additional allegations on May 22, 2014 (Dkt. No. 1).
On July 1, 2014, PPG filed a motion to dismiss McGovern’s
complaint with prejudice for failure to state a claim upon which
relief can be granted (Dkt. No. 7).

Specifically, PPG argues that

McGovern “has failed to allege that twisting lids onto buckets with
an ‘unreasonable amount of force’ presents both a high degree of
risk and strong probability of serious injury or death,” as
required by subsection (A) of the deliberate intention statute
(Dkt. No. 7-1 at 2).
PPG also argues that McGovern fails to allege that “twisting
lids onto buckets while having to exercise an unreasonable amount
of force violates a statute, rule, or regulation, or a commonly
accepted and well-known safety standard within the industry,” as
required by subsection (C) of the deliberate intention statute.
Id.

Finally, PPG states that McGovern fails to allege with

particularity that PPG “intentionally exposed [him] to an unsafe
working condition and that he suffered serious compensable injury
or compensable death.”

Id.

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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE

III. 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
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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

4

Anderson, 508 F.3d at 188

547).

“A

claim

has

facial

MCGOVERN V. PPG INDUSTRIES, INC.

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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
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.

However, the “deliberate

intention” statute carves out an exception to that immunity and
allows an employee to recover damages from an employer in a
deliberate intention case by proving the following five elements:
(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 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;
(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
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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
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 of the specific unsafe
working condition.
§ 23-4-2(d)(2)(ii)(A)-(E); see also Syl. Pt. 2, Helmick v. Potomac
Edison Co., 406 S.E.2d 700, 702 (W. Va. 1991) (“To establish
‘deliberate intention’ in an action under [W. Va. Code § 23-42(d)(2)(ii)], a plaintiff or cross-claimant must offer evidence to
prove each of the five specific statutory requirements.”).
C.

Analysis
1)

Violation of a Statute, Rule, Regulation, or Standard

In PPG’s motion to dismiss, it contends that McGovern “cannot
and does not” allege sufficient facts regarding a specific unsafe
working condition to establish a violation of a state or federal

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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
safety statute, rule, or regulation, or a commonly accepted and
well-known safety standard within the industry of the employer, as
required by subparagraph (C) of the deliberate intention statute.
(Dkt. No. 7-1 at 5).
The Supreme Court of Appeals of West Virginia has drawn a
distinction between statutes or regulations that generally require
a safe workplace, and statutes or regulations that impose a
specific, mandatory duty upon employers in a particular industry.
The latter are cognizable under subparagraph (C), whereas the
former are not. In McComas v. ACF Industries, LLC, the Court noted
that subparagraph (C) of the deliberate intention statute “also
requires proof that the safety regulation or safety standard is
specifically

applicable

to

the

condition involved in the action.”

particular

work

and

working

750 S.E.2d 235, 242 (W. Va.

2013).
In McComas, the Supreme Court of Appeals of West Virginia
denied summary judgment to the employer because the employee
adequately

alleged

facts

to

satisfy

subparagraph

(C)

of

the

deliberate intention statute. Id. at 242. The employee, a welder,
had sustained severe burns from a 480-volt electrical box when he
tried “to turn on the power at his work station for lighting and to
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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
operate an electric welding machine.”
employer

under

the

deliberate

Id. at 237.

intention

He sued his

statute,

alleging

violations of Standards 70B and 70E, two regulations addressing
electrical safety in the workplace. Id. Pursuant to Standard 70B,
an employer must inspect energized fused switch boxes every three
to six months for overheating, and clean, inspect, and maintain
non-energized switch boxes every three to six years.

Id. at 241.

Under

“insulation

Standard

70E,

an

employer

must

maintain

integrity...to support the voltage impressed.”

Id. at 242.

The

Supreme Court of Appeals of West Virginia found Standards 70B and
70E to be specific safety regulations applicable to the particular
work involved, and reversed the circuit court’s grant of summary
judgment on that issue.

Id. at 242, 245.

McGovern alleges that PPG violated two specific West Virginia
Code provisions due to “the unreasonable amount of force and
twisting

motion

required

configuration and process.”

by

the

new

bucket/lid

(Dkt. No. 1 at 7).

packaging

McGovern first

cites W. Va. Code § 21-3-1, which states, in relevant part, that
[e]very employer shall furnish employment which shall be
reasonably safe for the employees therein engaged and
shall furnish and use safety devices and safeguards, and
shall adopt and use methods and processes reasonably
adequate to render employment and the place of employment
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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
safe, and shall do every other thing reasonably necessary
to protect the life, health, safety, and welfare of such
employees.
W. Va. Code § 21-3-1. The statute applies “to any employment,” and
is not limited to a particular industry.

McGovern also cites W.

Va. Code § 21-3a-5, which requires, in relevant part, employers to
“furnish to each of [their] employees employment and a place of
employment...free from recognized hazards causing or likely to
cause death or serious physical harm...,” and to “comply with
occupational safety and health standards....” W. Va. Code § 21-3a5.
McGovern claims that these two West Virginia Code provisions
are sufficient to satisfy the requirements of subparagraph (C),
whereas PPG argues these code sections are general requirements of
workplace safety, not cognizable under subparagraph (C).
1 at 7; Dkt. No. 9 at 2).

(Dkt No.

On this point, the Court finds Bowden v.

Frito-Lay, Inc. persuasive authority.

2010 WL 3835222, at *8

(S.D.W. Va. Sept. 28, 2010).
In Bowden, the United States District Court for the Southern
District of West Virginia was asked to decide whether § 21-3-1 was
a general safety requirement, or imposed a specific affirmative

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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
duty on employers.

After discussing case law from the Supreme

Court of Appeals of West Virginia, the court found that § 21-3-1
“only imposes a general safety requirement upon employers, with no
specific requirements or duties.”

Id.

As a result, summary

judgment was appropriate for the employer because the employee
could not establish the elements of deliberate intention under the
West Virginia statute.

Id.

Other cases in the Southern District of West Virginia have
similarly held that the safety statute or standard must put the
employer on notice by specifically addressing “the unsafe working
condition in question.”

Greene v. Carolina Freight Carriers, 663

F.Supp. 112, 115 (1987).

There, the court found that a regulation

generally requiring safe equipment was insufficient because “[i]t
is quite abstract in its command.”

Id.

This Court finds Bowden’s reasoning persuasive, and holds that
§ 21-3-1 is a general safety requirement insufficient to state a
claim under subparagraph (C) of the West Virginia deliberate
intention statute.

This is consistent with the existing body of

case law, as well as with common sense.

The employer’s duty to

furnish a safe place of employment and to adopt methods and
processes for safety is also “quite abstract in its command,” and
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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
fails to impose specific requirements or duties on employers in the
chemical manufacturing industry.

Greene, 663 F.Supp. at 115.

McGovern’s attempt to satisfy subparagraph (C) by relying on
W. Va. Code § 21-3a-5 fails for the same reason.

Although the

Court could not find case law directly on point, § 21-3a-5 contains
the same type of general safety requirements as § 21-3-1.

Section

21-3a-5 requires employers to furnish a safe place of employment,
free

from

recognized

hazards;

to

furnish

the

employee,

upon

request, with a written statement listing any toxic or hazardous
substances with which the employee comes into contact; and, to
comply with occupational safety and health standards.

These are

not the type of specific, affirmative duties that would put PPG on
notice by specifically addressing the unsafe working condition in
question.
2)

Unsafe Working Condition

Not only does McGovern fail to allege a specific statute, but
he also fails to allege sufficient facts that the unsafe working
condition posed a strong probability of serious injury or death, as
required by subparagraph (A) of the deliberate intention statute.
McGovern must plead sufficient facts to show “[t]hat a specific

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MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV69

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
unsafe working condition existed in the workplace which presented
a high degree of risk and a strong probability of serious injury or
death.”

W. Va. Code § 23-4-2(d)(2)(ii)(A) (emphasis added).

In his complaint, McGovern alleges that PPG’s practice of
requiring him to affix the lids onto the buckets using a twisting
motion created an unsafe working condition.

(Dkt. No. 1, at 3).

Specifically, McGovern alleges that “the worker affixing the lid to
the full bucket of product could not affix the lid to the bucket
without an unreasonable amount of personal force coupled with a
twisting.”

Id.

McGovern must show that the unsafe working

condition presented a high degree of risk and a strong probability
of serious injury.

His allegations are still deficient in that

respect.
McGovern’s

complaint

states

that

“[t]his

new

bucket/lid

product configuration and process created a high degree of risk and
a strong probability of injury because of the unreasonable amount
of force required by the employee to affix the new lid to the new
bucket

and

the

twisting

motion

unreasonable amount of force.”

required

Id. at 3-4.

while

applying

the

See also id. at 7.

While McGovern has restated his allegation of the unsafe working

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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
condition to include buzzwords from the statute, the Court is “not
bound to accept as true a legal conclusion couched as a factual
allegation.”

Papasan, 478 U.S. at 286.

McGovern’s complaint “must contain ‘enough facts to state a
claim to relief that is plausible on its face.’” Anderson, 508 F.3d
at 188 (quoting Twombly, 550 U.S. at 547).

To state a claim for

relief, McGovern must establish that the unsafe working condition
presents both a “high degree of risk” and a “strong probability of
serious injury or death.”
Court

can

infer

from

W. Va. Code § 23-4-2(d)(2)(ii)(A).

McGovern’s

complaint

that

the

use

The
of

“unreasonable” force, combined with the twisting movement necessary
to affix the lids to the buckets, poses a high degree of risk.
However, the Court cannot infer, without any factual basis,
that the unsafe working condition presents a “strong probability of
serious injury or death.” McGovern’s allegation that he had to use
unreasonable force, coupled with a twisting motion, to affix the
lid to the bucket falls short of alleging a “strong probability of
serious injury or death.” Here, McGovern fails to nudge his claims
“across the line from conceivable to plausible.” Twombly, 550 U.S.
at 570.

As a result, the complaint must be dismissed.

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MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITH PREJUDICE
McGovern’s complaint fails to cure the defect that plagued his
previous complaint. McGovern v. PPG Industries, Inc., No. 1:14CV6,
2014 WL 1408077 (N.D.W. Va. Apr. 11, 2014).

There, the Court held

that McGovern’s “allegations might suffice as to the unsafe working
condition,” but that “the complaint does not plausibly allege that
the

unsafe

condition

injury....”

posed

any

degree

of

risk

or

probable

Id. at *5
IV. CONCLUSION

For the reasons discussed, the Court GRANTS PPG’s motion to
dismiss and DISMISSES this case WITH PREJUDICE.1
It is so ORDERED.
The Court directs the Clerk to enter a separate judgment
order, and to transmit copies of this order to counsel or record.
DATED: September 30, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

1

McGovern’s complaint is dismissed with prejudice because his
previous complaint was dismissed without prejudice in McGovern v.
PPG Industries, Inc., No. 1:14CV6, 2014 WL 1408077 (N.D.W. Va.
Apr. 11, 2014). See Hinks v. Board of Educ. of Harford Cty., 2010
WL 5087598 at *2 (D. Md. Dec. 7, 2010) (“A court has the discretion
to grant a motion to dismiss with or without prejudice.”).
14