Grose v. West Virginia Alloys, Inc. et al

Filing 48

MEMORANDUM OPINION AND ORDER granting the 6 MOTION by David Mallow to Dismiss Complaint Attached to 1 Notice of Removal; David Mallow is dismissed from this action. Signed by Judge John T. Copenhaver, Jr. on 12/1/2015. (cc: counsel of record; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
LORETTA GROSE,
Plaintiff,
v.

Civil Action No. 15-03818

WEST VIRGINIA ALLOYS, INC.,
a Delaware corporation,
WVA MANUFACTURING, LLC,
a Delaware limited liability company,
GLOBE METALLURGICAL, INC.,
a Delaware corporation,
and DAVID MALLOW,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion to dismiss filed by defendant
David Mallow on April 2, 2015.
I.
A.
Plaintiff Loretta Grose (“plaintiff”) is a West
Virginia citizen who lives in Gallagher, West Virginia.
Defendant West Virginia Alloys, Inc., is a Delaware corporation
with its principal place of business in Miami, Florida.
Defendant Globe Metallurgical, Inc., is a Delaware corporation
with its principal place of business in Beverly, Ohio.
Defendant WVA Manufacturing, LLC (“WVAM”), is a Delaware limited

liability company whose constituent members are citizens of
Delaware, Michigan, and Florida.

Defendant David Mallow is a

West Virginia citizen who lives in Boomer, West Virginia, and is
the sole non-diverse defendant.
Jurisdiction is asserted under 28 U.S.C. § 1332.
Although the parties are not of completely diverse citizenship,
the defendants contend, in their notice of removal, that “the
[c]ourt may . . . disregard Mr. Mallow’s citizenship pursuant to
the doctrine of fraudulent joinder.”

ECF No. 1 at ¶ 12 (citing

Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)).
B.
This civil action arises from an incident that
occurred on or around May 21, 2014.

Plaintiff was then employed

as a “head tapper” at an industrial facility in Alloy, West
Virginia, operated by WVAM.

Plaintiff’s duties included

operating the facility’s “ladle mechanism” and performing visual
inspections of a furnace that contained molten metal.
The furnace was situated under “fire-brick” flooring.
Plaintiff alleges that “[o]n and before May 21, 2014, the firebrick flooring . . . was in a state of disrepair[,] and the
integrity of the flooring was compromised.”

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She claims that she

told this to “company management[,] including . . . [defendant]
David Mallow,” but that nothing was done about it.
On or around May 21, 2014, plaintiff was performing
maintenance on the furnace when the fire-brick flooring
partially collapsed and plaintiff fell partway through the
floor.

This caused “half her body [to be] situated over the

2900-3200 [degree] Fahrenheit molten material” below.

Plaintiff

alleges that she suffered “severe and permanent injuries” as a
result.
Plaintiff commenced this action on February 11, 2015,
in the Circuit Court of Fayette County, West Virginia.

The

complaint asserts against each defendant (1) a “deliberate
intent” claim, pursuant to West Virginia Code section 23-42(d)(2)(ii), and (2) a common law negligence claim based on the
defendants’ alleged failure to provide a reasonably safe
workplace.

Mallow moved to dismiss the complaint, pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure, on April
2, 2015.
II.
Federal Rule of Civil Procedure 8(a)(2) requires a
plaintiff’s complaint to contain “a short and plain statement of
the claim showing . . . entitle[ment] to relief.”

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Fed. R. Civ.

P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007).

Rule

12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief
can be granted. . . .”

Fed. R. Civ. P. 12(b)(6).

The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”

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

(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),
overruled on other grounds by Twombly, 550 U.S. at 563); see
also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir.
2007).

The requisite showing of an “entitlement to relief” must

amount to more than mere “labels and conclusions.”
U.S. at 555.

Twombly, 550

“[A] formulaic recitation of the elements of a

cause of action will not do.”

Id.; see also Giarratano v.

Johnson, 521 F.3d 298, 304 (4th Cir. 2008).

To survive a motion

to dismiss for failure to state a claim, then, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570); see also Monroe v. City of Charlottesville, 579 F.3d 380,
386 (4th Cir. 2009).
When evaluating a motion to dismiss under Rule
12(b)(6), the court is required to “‘accept as true all of the

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factual allegations contained in the complaint. . . .’”
Erickson, 551 U.S. at 94 (quoting Twombly, 550 U.S. at 555-556);
see also S. C. Dept. of Health and Envtl. Control v. Commerce
and Indus. Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting
Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)).

Factual

allegations are to be distinguished from legal conclusions,
which the court need not accept as true.

Iqbal, 556 U.S. at 678

(“[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions”).

The court must also “draw[] all reasonable . . .

inferences from th[e] facts in the plaintiff’s favor. . . .”
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
III.
A.
In Count 1, plaintiff alleges a “deliberate intent”
claim pursuant to West Virginia Code section 23-4-2(d)(2)(ii).
Complaint (“Compl.”) ¶ 19.

In response, Mallow contends that

“[a] ‘deliberate intent’ claim will not lie against a nonemployer ‘person,’ such as a supervisor or co-employee.”

Mallow

Memorandum in Support of Motion to Dismiss (“Mallow Mem.”) ¶ 5.
In Count 2, plaintiff asserts a common law negligence
claim against Mallow.

Specifically, plaintiff alleges that

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Mallow “had the duty to control . . . and . . . exercised
control over the Alloy[, West Virginia] facility’s operations
and equipment, and [thus] had the duty to provide the
[p]laintiff and other employees at the facility with a
reasonably safe place to work[.]”

Compl. ¶ 23.

Plaintiff

further alleges that Mallow “negligently and carelessly failed
to provide . . . a reasonably safe place to work[,]” and that
this failure directly and proximately caused plaintiff “severe
[and] permanent injuries[.]”

Id. ¶¶ 24-25.

In his motion to

dismiss, Mallow contends that the immunity conferred on
employers by West Virginia Code section 23-4-6, and extended to
a variety of natural persons, including “managers,” by section
23-4-6a, precludes such a claim.

Mallow Mem., at pp. 5-7.

B.
The West Virginia Workers’ Compensation Act (“the
Act”) is intended to provide a simple, expeditious method of
resolving disputed claims arising from workplace injuries.
Mitchell v. State Workmen’s Comp. Comm’r, 163 W. Va. 107, 117
(1979); Meadows v. Lewis, 172 W. Va. 457, 469 (1983).

To that

end, the Act “remove[s] 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.”
W. Va. Code § 23-4-2(d)(1); see also Belcher v. Richardson, 317

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F. Supp. 1294, 1296 (S.D. W. Va. 1970) (Christie, J.) (rev’d on
other grounds, 404 U.S. 78 (1971)) (The Act “takes from the
employee his common law right to sue his employer for damages
for negligence” in return for payment from the workers’
compensation fund.).

Section 23-2-6 expressly provides that

covered employers are “not liable to respond in damages at
common law or by statute for the injury or death of any
employee, however occurring. . . .”

The immunity provided by

section 23-2-6 is, by section 23-2-6a, in turn extended to
“every officer manager, agent, representative[,] or employee” of
a covered employer.
But workers’ compensation immunity is not absolute -it “may be lost . . . if the employer or person against whom
liability is asserted acted with deliberate intention.”1

W. Va.

Code § 23-4-2(d)(2) (internal quotation marks omitted).

Section

23-4-2(d)(2)(i) and (ii)2 provide two “separate and distinct”

1 By the terms of section 23-2-6, immunity may also be lost if an
employer is “in default in the payment of premiums or direct
payments” owed pursuant to the Act.
W. Va. Code § 23-2-6.
Plaintiff does not allege any facts that would affect immunity on
that basis.
2 Section 23-4-2 was amended recently. The amendments took effect
on June 12, 2015, and apply to “all injuries occurring on or after
July 1, 2015.”
W. Va. Code § 23-4-2(g) (2015).
Plaintiff’s
injuries are alleged to have occurred “on or around May 21, 2014,”
Compl. ¶ 16. “The statutes governing the rights and duties of the
employer and claimant . . . are those that were in effect on the
date of the injury.” Smith v. State Workmens’ Comp. Comm’r, 199

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ways in which deliberate intention may be established.

Syl. Pt.

1, Mayles v. Shoney’s Inc., 185 W. Va. 88 (1990) (citing W. Va.
Code § 23-4-2(d)(2)).

Under subsection (i), a plaintiff can

show deliberate intention 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 the employee.”
Code § 23-4-2(d)(2)(i).

See W. Va.

Plaintiff does not allege that any

defendant violated section 23-4-2(d)(2)(i).

See Compl. ¶ 19

(“Defendants violated West Virginia Code [section] 23-42(d)(2)(ii). . . .”).

Consequently, only subsection (ii) is

relevant here.
Under subsection (ii), a plaintiff can show deliberate
intention by proving the existence of the five elements set out
by section 23-4-2(d)(2)(ii), as follows:
(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;

W. Va. 108, 112 (1975) Thus, the version of section 23-4-2 in
effect prior to the 2015 amendments, and set forth below, governs
this action. All references to section 23-4-2 herein are to the
version prior to the 2015 amendments.

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(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 of the specific unsafe
working condition.
W. Va. Code § 23-4-2(d)(2)(ii).

If the requisite showing is

made, then a plaintiff may recover, through a tort claim,
“any excess of damages over the amount received or receivable”
in workers’ compensation benefits.

Syl. Pt. 3, Powroznik v.

C. & W. Coal Co., 191 W. Va. 293 (1994); see also Arthur v.
E.I. DuPont de Nemours & Co., 58 F.3d 121, 123 (4th Cir. 1995)
(same).

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The West Virginia Supreme Court of Appeals recently
resolved a longstanding uncertainty regarding subsection (ii).
See Young v. Apogee Coal Co., LLC, 232 W. Va. 554 (2013). In
Young, an employee was allegedly instructed by his “maintenance
supervisor” to remove an 11,685 pound counterweight on a piece
of industrial equipment.

While removing the weight, it fell on

top of the employee and killed him.

The employee’s estate filed

a wrongful death action in state court against the employer
company, its parent corporation, and the individual supervisor.
The complaint included, among other things, a deliberate intent
claim brought under section 23-4-2(d)(2)(ii).

The defendants

asserted that section 23-4-2(d)(2)(ii) authorized claims against
“employers” only.

The Supreme Court agreed that subsection (ii)

applied only to employers, holding as follows:
West Virginia Code [section] 23-4-2(d)(2)(ii) (2005)
provides for a “deliberate intent” cause of action
against an employer only. A non-employer “person,” as
identified in West Virginia Code [section] 23-2-6a
(1949), may not be made a defendant in a cause of action
brought pursuant to West Virginia Code [section] 23-42(d)(2)(ii).
Syl. Pt. 6, Young, 232 W. Va. 554.
Here, plaintiff alleges in Count 1 that Mallow acted
with “deliberate intention” when he “intentionally and knowingly
exposed [her] to . . . unsafe working conditions[.]”
19 (citing W. Va. Code § 23-4-2(d)(2)(ii)).

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Compl. ¶

Even if true, such

a claim will only strip Mallow of the immunity conferred by the
Act if he is an “employer” within the meaning of section 23-2-6,
and not a “person” within the meaning of section 23-2-6a.
The complaint refers to Mallow as “company
management.”

Compl. ¶ 13.

A “non-employer ‘person[],’” as

defined in section 23-2-6a, “may not be made a defendant in a
cause of action brought pursuant to [section] 23-4-2(d)(2)(ii).”
Syl. Pt. 6, Young, 232 W. Va. 554.

Section 23-2-6a refers to

“officer[s], manager[s], agent[s], representative[s, and]
employee[s].”

As “company management,” Mallow is apparently a

“person,” as defined in section 23-2-6a, and the complaint
contains no basis for concluding otherwise.

Accordingly, he is

entitled to immunity from liability under common law or statute,
as discussed above.
Count 2 asserts a common law negligence claim against
Mallow based on his alleged failure “to provide . . . a
reasonably safe place to work.”

Compl. ¶ 19.

As explained

above, the Act was specifically designed to remove disputes
between employers and employees over compensation for workplace
injuries from the common law tort system.

See W. Va. Code § 23-

4-2(d)(1); see also Bias v. E. Assoc. Coal Corp., 220 W. Va.
190, 194 (2006) ("The legislature intended for W. Va. Code § 232-6 (1991) to provide qualifying employers sweeping immunity

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from common-law tort liability for negligently inflicted
injuries."); Belcher v. H.H. Fletcher & Co., 498 F. Supp. 629,
629 (S.D. W. Va. 1980) (Kidd, J.) (observing that the Act was
designed to remove negligently caused industrial and workplace
accidents from the common law tort system).

Thus, “[t]o the

extent that a worker’s injuries are of the type . . . for which
workers’ compensation benefits may be sought . . . the
exclusivity provision of [the Act] prohibits recovery outside of
the mechanisms set forth” in the Act itself, except where
immunity from suit has been overridden.

Syl. Pt. 4, Messer v.

Huntington Anesthesia Grp., Inc., 218 W. Va. 4 (2005).

Because

plaintiff cannot overcome the immunity extended to Mallow by
section 23-2-6a, neither can she hold him liable for negligence
under common law.

Accordingly, even after taking the factual

allegations in the complaint as true, Count 2 fails to state a
claim against Mallow for which relief can be granted.
IV.
For the foregoing reasons, it is ORDERED that
defendant David Mallow’s motion to dismiss the complaint be, and
it hereby is, granted, and he is dismissed from this action.

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The Clerk is requested to transmit copies of this
order to all counsel of record and any unrepresented parties.
ENTER: December 1, 2015

John T. Copenhaver, Jr.
United States District Judge

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