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Jackson v. Eastman Chemical Co.

United States District Court, D. South Carolina, Orangeburg Division

October 23, 2018

Jacob S. Jackson, Plaintiff,
v.
Eastman Chemical Company and Mundy Maintenance Services and Operations, LLC Defendants.

          ORDER AND OPINION

         Plaintiff Jacob S. Jackson filed this action alleging that he was injured as a result of the negligence of Defendants Eastman Chemical Company (“Eastman”) and Mundy Maintenance Services and Operations, LLC (“Mundy”) (together “Defendants”). (ECF No. 1.)

         This matter is before the court by way of Eastman's Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the basis that Jacob Jackson was a “statutory employee” under the South Carolina Workers' Compensation Act (the “Act”), SC Code §§ 42-1-10 to -19-50 (2017), such that the Act is Jackson's exclusive remedy. (ECF No. 53.) Jackson opposes Eastman's Motion in its entirety. (ECF No. 58.) For the reasons set forth below, the court GRANTS Eastman's Motion to Dismiss.

         I. RELEVANT BACKGROUND TO PENDING MOTION

         This case arises out of an industrial accident that occurred on December 6, 2016, at a chemical manufacturing facility (the “Facility”) located “on the banks of the Congaree River near Sandy Run a few miles northeast of Gaston in Calhoun County, South Carolina.” (ECF No. 58 at 2.) Eastman operated the Facility from 1967 until 20ll manufacturing polyethylene terephthalate (“PET”), a material “commonly used in soda bottles.” (ECF No. 1 at 3 ¶¶ 9-11.) On January 31, 2011, Eastman sold specified parts of the Facility to DAK Americas, LLC (“DAK”), “a subsidiary of Alpek S.A.B. de C.V., a Mexican chemical manufacturing company.” (Id. ¶ 11.) “DAK purchased . . . polymer and chemical manufacturing lines, certain on-site utilities and services to support such operations, but specifically excluded some retained facilities at the Plant.” (ECF No. 58 at 3.) “Among the retained assets [of Eastman] were: 1, 000 acres of land, six to ten buildings and four production lines out of thirteen which are making substantially similar products to those produced prior to the sale (the ‘Retained Assets').” (Id. (citing ECF No. 78-1 at 29:14-30:25, 32:3-14, 53:1-25 & ECF No. 78-2 at 28:13-29:9, 53:3-15).) Additionally, “[w]hen Eastman sold the Facility to DAK, nearly all of Eastman's 400 employees at the site became DAK employees at the time of the sale and continued doing the same jobs.” (ECF No. 53 at 4 (citing ECF No. 78-1 at 57:1-23).) As a result, DAK's employees “operate[d] and maintain[ed] Eastman's retained lines the same way that they did while they were employed by Eastman.” (ECF No. 78-1 at 57:13-17.)

         “Two contracts between Eastman and DAK memorialize that agreement.” (ECF No. 53 at 5.) “First, under the Operating Agreement, Eastman pays DAK to provide its employees to operate the Eastman Retained lines, which generally run twenty-four hours a day.” (Id. (referencing ECF No. 53-3).) “The operators report to supervisors within DAK's chain of command, and the DAK Area Manager serves as the liaison to Eastman.” (Id.) “Second, there is a separate Services Agreement, under which Eastman pays DAK to provide, among other things, employees from DAK's maintenance department to perform maintenance and repairs on the Retained Lines.” (Id. (referencing ECF No. 53-4).) “DAK's employees, including Plaintiff [Jackson], were Eastman's operations and maintenance workforce at the time of the Incident pursuant to the Operations Agreement and Services Agreement.” (Id. at 6 (citations omitted).) As an operations and maintenance worker, Jacob Jackson did the same type of work for DAK after the sale as he did for Eastman before the sale. (ECF No. 78-1 at 60:1-6.)

         After purchasing the Facility, DAK contracted with Mundy to “provide[] maintenance services at the site.” (ECF No. 78-2 at 126:19-20.) Employees of Mundy were asked on December 3, 2016, “to heat a drain pipe [] near the Pump with a torch flame.” (ECF No. 55 at 3.)

         On December 6, 2016, Jackson, along with Alton Ray Zeigler and Kevin Vann, were assigned to perform preventative maintenance on line A, one of the four Eastman “Retained Asset” production lines, which involved draining the AC-11 loop to clean out any molten material and pulling/separating the AC-11 pump from its housing to replace a leaking seal. (ECF No. 78-1 at 109:5-11, 114:9-14, 115:7-15 & 135:2-24.) During the performance of this maintenance, Jackson was injured as “the result of an explosion which covered [] Jackson in the superheated chemical monomer and propelled an industrial pump, which weighs approximately 300 pounds, almost nine feet across a workspace before coming to rest as it put a hole in a cement block wall.” (ECF No. 58 at 1.)

         As a result of the foregoing, Jackson filed an action in this court on April 19, 2017, alleging claims against Eastman for negligence and negligent failure to warn and against Mundy for negligence. (ECF No. 1 at 8 ¶ 57-12 ¶ 75.) Additionally, Jackson alleged that he is entitled to an award of punitive and exemplary damages. (Id. at 12 ¶ 76-13 ¶ 79.) After engaging in court-ordered jurisdictional discovery with Jackson (see ECF No. 38 at 1 ¶ 2), Eastman filed the instant Motion to Dismiss for Lack of Subject Matter Jurisdiction on November 30, 2017, asserting that Jackson was a “statutory employee” under the Act such that the Act is Jackson's exclusive remedy. (ECF No. 53.) In his December 21, 2017 Response in Opposition, Jackson expressly did not agree that he is Eastman's statutory employee for purposes of its Motion. (ECF No. 58.) In the alternative, Jackson argued that Eastman cannot avail itself of tort immunity under the Act's exclusive remedy provision because it failed to secure the payment of compensation as prescribed by the Act. (Id. at 11-12.)

         The court heard argument from the parties regarding the instant Motion on January 9, 2018. (ECF No. 65.) At the hearing, counsel for Alton Ray Zeigler in a related case suggested during his presentation that the best evidence of an insurance policy that provides workers' compensation coverage “is to have an affidavit from the insurance company.” (ECF No. 70 at 36:24-25.) Thereafter, on January 12, 2018, Eastman submitted the Declaration of David Kroll (ECF No. 66-1), the Assistant Vice President of Workers' Compensation Claims for ACE American Insurance Company (“Ace Insurance”). Kroll declared that:

If a court determined that workers employed by DAK Americas, LLC were the statutory employees of Eastman Chemical Company under the applicable statutes and case law in South Carolina, and thus had claims under the South Carolina Workers' Compensation Act against Eastman Chemical Company, ACE American Insurance Company would respond and pay all benefits to which the workers were entitled under the policy in accordance with the laws of South Carolina.

(Id. at 3 ¶ 12.) In response to an Objection to and Motion to Exclude Kroll's Declaration (ECF No. 72) filed by Jackson on January 23, 2018, the court entered a Text Order (ECF No. 97) on May 21, 2018, that “allow[ed] the parties sixty (60) days, or until July 20, 2018, to conduct the following discovery:” (1) service of appropriate discovery on Ace Insurance and (2) the deposition of Kroll. (Id.) After the parties conducted this additional limited discovery, they filed supplemental briefs between October 2-4, 2018. (See ECF Nos. 108, 109, 110.)

         II. LEGAL STANDARD

         A. Rule 12(b)(1) Motions to Dismiss Generally

         Article III of the Constitution limits the jurisdiction of the federal courts to the consideration of “cases” and “controversies.” U.S. Const. art. III, § 2. “Federal courts are courts of limited subject matter jurisdiction, and as such there is no presumption that the court has jurisdiction.” Pinkley, Inc. v. City of Fredrick, Md., 191 F.3d 394, 399 (4th Cir. 1999). A Rule 12(b)(1) motion for lack of subject matter jurisdiction raises the fundamental question of whether a court has jurisdiction to adjudicate the matter before it. Fed.R.Civ.P. 12(b)(1). In determining whether jurisdiction exists, the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). “The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. (citation omitted). The plaintiff bears the burden of proof on questions of subject matter jurisdiction. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

         Normally, this court would have jurisdiction over the instant matter under 28 U.S.C. § 1332(a)(1) because the minimum requirements of diversity are met.[1] However, “[t]he essence of diversity jurisdiction is that a federal court enforces State law and State policy.” Angel v. Bullington, 330 U.S. 183, 191 (1947) (federal court sitting in diversity case could not grant deficiency judgment barred by North Carolina statute). “Thus, there are cases where, even if diversity of citizenship exists, a federal court ‘will not take jurisdiction [ ] unless the plaintiff has asserted a claim cognizable in the state courts.'” Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (quoting 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3602, at 375 (2d ed. 1984); see also Proctor & Schwartz, Inc. v. Rollins, 634 F.2d 738, 740 (4th Cir. 1980) (finding that South Carolina “door-closing” statute deprived federal court of jurisdiction). Accordingly, if an exclusive remedy provision applies, the district court should treat the issue as one falling under the province of a 12(b)(1) dismissal, rather than a dismissal for failure to state a claim upon which relief can be granted. E.g., Banks v. Va. Elec. & Power Co., 205 F.3d 1332, at *2 (4th Cir. Feb. 17, 2000) (affirming district court's dismissal under Rule 12(b)(1) and “find[ing] no merit to plaintiff's contention that the district court improperly utilized Rule 12(b)(1) to dismiss his action”); Lentine v. 3M Co., C/A No. 6:08-2542-HMH, 2009 WL 792495, at *2 (D.S.C. Mar. 23, 2009) (“The determination of whether a worker is a statutory employee is jurisdictional and a question of law.” (citing Posey v. Proper Mold & Eng'g, Inc., 661 S.E.2d 395, 398 (S.C. Ct. App. 2008))); Adams v. Davison-Paxon Co., 96 S.E.2d 566, 571 (S.C. 1957) (“It has been consistently held that whether the claim of an injured workman is within the jurisdiction of the Industrial Commission is a matter of law for decision by the court, which includes the finding of the facts which relate to jurisdiction.” (citations omitted)); Poch v. Bayshore Concrete Prods./S.C., Inc., 686 S.E.2d 689, 694 (S.C. Ct. App. 2009) (“The General Assembly has vested the South Carolina Workers' Compensation Commission with exclusive original jurisdiction over an employee's work-related injuries.” (citing Sabb v. S.C. State Univ., 567 S.E.2d 231, 234 (S.C. 2002))); Voss v. Ramco, Inc., 482 S.E.2d 582, 584 (S.C. Ct. App. 1997) (observing that the statutory employee determination is jurisdictional (citing, e.g., Adams, 96 S.E.2d at 571)).

         B. Statutory Employers and Employees

         The Act “contains an ‘exclusivity provision.'” Poch, 686 S.E.2d at 694 (citing Edens v. Bellini, 597 S.E.2d 863, 867 (S.C. Ct. App. 2004)). “This exclusivity provision states:

The rights and remedies granted by this Title to an employee when he and his employer have accepted the provisions of this Title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.
Provided, however, this limitation of actions shall not apply to injuries resulting from acts of a subcontractor of the employer or his employees or bar actions by an employee of one subcontractor against another subcontractor or his employees when both subcontractors are hired by a common employer.

Poch v. Bayshore Concrete Prods./S.C., Inc., 747 S.E.2d 757, 761 (S.C. 2013) (quoting S.C. Code Ann. § 42-1-540 (1985)). “The exclusivity provision of the Act applies both to ‘direct' employees and to those termed ‘statutory employees' under § 42-1-400.” Id. (quoting Edens, 597 S.E.2d at 869). Pursuant to the exclusivity provision, “[a] statutory employee may not maintain a [] [tort] action against his direct employer or his statutory employer [for a work related accident or injury]; rather, the [statutory] employee's sole remedy for work-related injuries is under the Act.”[2] Maloney v. Landmark Tours & Travel, Inc., C/A No. 9:10-0725-MBS, 2011 WL 1526731, at *2 (D.S.C. Apr. 19, 2011) (citing Hancock v. Wal-Mart Stores, Inc., 584 S.E.2d 398, 400 (S.C. Ct. App. 2003)); see also S.C. Code Ann. § 42-1-540 (1985).

         Three tests are applied to determine whether the activity of a worker is sufficient to make him a statutory employee of the owner or upstream employer within the contemplation of the Act: “(1) is the activity an important part of the owner's business or trade; (2) is the activity a necessary, essential, and integral part of the owner's trade, business, or occupation; or (3) has the identical activity previously been performed by the owner's employees?” Edens, 597 S.E.2d at 868. “If the activity at issue meets even one of these three criteria, the worker qualifies as the statutory employee of the owner.” Id. “Since no easily applied formula can be laid down for determining whether work in a particular case meets these tests, each case must be decided on its own facts.” Glass v. Dow Chem. Co., 482 S.E.2d 49, 51 (S.C. 1997). “Any doubts as to a worker's status should be resolved in favor of including him or her under the Worker's Compensation Act.” Poch, 747 S.E.2d at 761 (quoting Posey, 661 S.E.2d at 400).

         III. ...


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