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Matthews v. E. I. Du Pont De Nemours

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

November 13, 2018

KIMBERLY K. MATTHEWS, Individually and as Personal Representative of the Estate of JERRY L. MATTHEWS, Plaintiff,



         On August 25, 2016, Plaintiff initially filed this civil action in this Court, alleging causes of action against twenty-nine named Defendants. These other Defendants are no longer parties to this lawsuit, and Defendant E.I. du Pont de Nemours and Company is the only remaining Defendant in this case. This matter is before the Court for review of Defendant DuPont's Renewed Motion for Summary Judgment. [ECF #202]. DuPont asserts, among other things, that it was the decedent's statutory employer, and therefore South Carolina Workers' Compensation law provides Plaintiff's exclusive remedy. On May 31, 2018, Plaintiff filed a response in opposition to this Motion [ECF #203');">203], and DuPont filed its reply brief on June 7, 2018. [ECF #204]. All parties have had the opportunity to brief the issues raised in the motions, and this Court has thoroughly considered all pleadings filed in this case.[1" name= "FN1" id="FN1">1]

         Factual Background and Procedural History

         It is undisputed that in the early 1960s, Jerry L. Matthews, Sr., worked for AC&S (also known as Armstrong Contracting & Supply Corporation), a company that contracted with DuPont to perform asbestos insulation on pipes within DuPont's facilities. DuPont corporate records show that during this time period, DuPont hired “asbestos workers” from AC&S. [ECF #203');">203-6]. Mr. Matthews performed insulation work, which exposed him to asbestos, while working for AC&S at DuPont facilities located in South Carolina and Virginia.[2] Mr. Matthews worked as an insulation apprentice with AC&S at a DuPont facility in Florence, South Carolina starting in 1960 for at least two years. [ECF #202-2; Matthews Dep. 44:18-25; 45:1-8 (Jan. 30, 2017)]. While at the Florence location, Mr. Matthews mixed bags of asbestos-containing insulation mud and eventually handled, sawed, and applied asbestos-containing Kaylo pipe insulation. [ECF #202-2; Matthews Dep. 45-49]. Mr. Matthews also worked as an insulator at a DuPont facility in Camden for several months in 1964 and 1965 and at a DuPont facility in Martinsville, Virginia around this same time frame. [ECF #202-2; Matthews Dep. 95:6-11; 109:25-110:09; 406:20-407:02; 416:25-417:03]. While at the Camden facility, Mr. Matthews insulated pipe in a “spin beam” using asbestos-containing pipe insulation and asbestos cloth. [ECF #202-2; Matthews Dep. 95:12-96:5]. Mr. Matthews testified that the spin beam he was working on was part of the “old construction” and that the Camden plant was undergoing some remodeling. [ECF #202-2; Matthews Dep. 406:1-13]. Mr. Matthews performed similar work at the plant in Martinsville. [ECF #202-2; Matthews Dep. 110:4-22]. Mr. Matthews explained that the construction project at the Florence facility was “new construction” outdoors, while the construction project at both the Camden and Martinsville facilities involved extensive remodeling of the facilities. [ECF #202-2; Matthews Dep. 45:21-25; 94:12-25; 399:4-9; 407:22-22; 417]. Mr. Matthews recalls that the Camden plant produced nylon, and that they had to have spin beams to make the material. [ECF #202-2, Matthews Dep. 406: 1-13].

         Though commonly identified as a chemical company, during this time period, DuPont also had other divisions, including a construction department, responsible for conducting major, new construction and renovation at DuPont's manufacturing facilities, as well as building facilities for the government and other companies, such as General Motors. [ECF #202-6; Dawson Dep. 35-36; 321-322 (July 19, 2017)]. DuPont regularly hired contractors to assist with construction, maintenance, repair, and remodeling and upgrading its facilities. [ECF #202-4; Aff. of James K. Addison, ¶¶ 5-11].[3] According to the corporate charter, the nature of DuPont's business at that time was quite broad and included both the preparation and sale of explosives, as well as the use of any materials and products used in or in connection with the sale or distribution of its products. [ECF #202-5, pp. 3-4]. The charter also references engaging in all kinds of business including “construction and industrial works and operations.” [ECF #202-5, pp. 3-4]. Barbara Dawson, DuPont's corporate representative explained that by the 1960s, DuPont had many different divisions, including textiles, chemical, paint, engineering, and construction. [ECF #202-6; Dawson Dep. 35:12-24].

         DuPont's construction division employees constructed new facilities and performed expansions, renovations and repair work. [ECF #202-4; Aff. of Addison, ¶ 5]. In order to complete these projects, DuPont also employed skilled craftworkers, including insulators, through contractors like AC&S. [ECF #202-4; Aff. of Addison, ¶¶ 5, 7-8]. DuPont's direct employees would, on occasion, perform the same craftwork performed by the contractors, including insulation work. [ECF #202-4; Aff. of Addison, ¶¶ 9, 10]; [ECF #202-6, Dawson Dep. 324-326]. However, DuPont hired “outside people” to execute major construction projects. [ECF #203');">203-3, Dawson Dep. 252:1-20]. DuPont did not employ insulators on a full-time basis. [ECF #203');">203-3; Dawson Dep. 250: 13-18].[4] Further, DuPont acknowledges it did not actually manufacture thermal insulation. [ECF #203');">203-3; Dawson Dep. 35-36]. DuPont also agrees that it was not an “insulation company.” [ECF #203');">203-3, Dawson Dep. 37: 16-19]. DuPont was also not an insulating contractor. [ECF #203');">203-8; Henshaw Dep. 79-81 (Nov. 16, 2017)].

         During this time frame, the Florence Plant employed 65 mechanics to perform “part-time” insulation work, while the Camden Plant employed 188 such employees. [ECF #203');">203-4; 203');">203-5]. These records further show that the employees at the Florence plant spent approximately 10% of their time doing part-time insulation work, while employees at the Camden plant might spend up to 25% of their time doing insulation work. Depending upon the duration of the task, an outside contractor performing insulation work would have that job as his primary responsibility, whereas a direct employee would be performing insulation work as an incidental task. [ECF #203');">203-3; Dawson Dep. 257: 6-23]. Mr. Matthews testified that he came with his own tools to the DuPont site. [ECF #203');">203-2; Matthews Dep. 402:1-11].

         Defendant provided the testimony of Mr. James K. Addison, the field project manager for DuPont at the time period in question, who stated that pipe insulation was a normal and important part of DuPont's operations and business activities. [ECF #202-4, Aff. of Addison ¶¶ 5-6]. He further averred that the craftwork performed by contractors was an essential, integral, and necessary part of the construction work performed by DuPont, and that employees of DuPont also performed the same craftwork that was performed by contractors, including mechanics who performed insulation and pipefitting. [ECF #202-4, Aff. of Addison ¶¶ 8-9]. According to Mr. Addison, the work performed by Mr. Matthews was directly related and important to DuPont's ongoing business and operations. [ECF #202-4; Aff. of Addison, ¶¶ 5-7]. Without the insulation work performed by AC&S, the company Mr. Matthews worked for, the expansion work at the three DuPont facilities could not have been completed, and the insulation work performed at these three facilities was a necessary, essential, and integral component of DuPont's construction business. [ECF #202-4; Aff. of Addison, ¶¶ 5-8].

         On August 25, 2016, Mr. Matthews filed a Complaint against several defendants, alleging he developed lung cancer caused by breathing in Defendants' asbestos-containing products. [ECF #1]. Jerry L. Matthews died on December 23, 2017. [ECF #188]. On March 2, 2018, Plaintiff amended the Complaint to substitute the personal representative of the estate of Jerry Matthews, Sr., Kimberly K. Matthews, and to add a wrongful death claim. [ECF #192]. Defendant DuPont has now filed its Motion for Summary Judgment, arguing that Plaintiff's claims against DuPont must be dismissed because Plaintiff's exclusive remedy is a claim under the South Carolina Workers' Compensation Act (the “Act”), over which the South Carolina Workers' Compensation Commission has exclusive jurisdiction. Defendant DuPont argues that because Mr. Matthews was a “statutory employee” of DuPont, South Carolina Workers' Compensation law provides the exclusive remedy for this claim. [ECF #202, p. 2]. It is Plaintiff's position that because the Act includes a statute of repose for Mr Matthews's asbestos-related lung cancer, which by its nature has a long latency period, his occupational disease is not compensable under the Act. [ECF #203');">203, pp. 7-8]. Therefore, Plaintiff argues that unless there is a right to compensation under the Act, the exclusive remedy provision is inapplicable. [ECF #203');">203, 8');">p. 8]. Plaintiff further argues that Mr. Matthews was not a statutory employee of DuPont, therefore Defendant is not entitled to summary judgment. Thus, at issue before this Court is whether Plaintiff is the statutory employee of DuPont, such that summary judgment is appropriate in this case. This Court has thoroughly considered the arguments and the evidence of record and now issues the following Order.

         Standard of Review

         Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes the showing, however, the opposing party must respond to the motion with “specific facts showing there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). When no genuine issue of any material fact exists, summary judgment is appropriate. Shealy v. Winston, 1009');">929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

         Defendant “bears the initial burden of pointing to the absence of a genuine issue of material fact.” Temkin v. Frederick Cnty. Comm'rs, 16');">945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If Defendant carries this burden, “the burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact.” Id. at 718-19 (citing Anderson, 477 U.S. at 247-48).

         Moreover, “once the moving party has met its burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show there is a genuine issue for trial.” Baber v. Hosp. Corp. of Am., 872');">977 F.2d 872, 874-75 (4th Cir. 1992). The nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. See id; Doyle v. Sentry, Inc., 877 F.Supp. 1002');">877 F.Supp. 1002, 1005 (E.D. Va. 1995). Rather, the nonmoving party is required to submit evidence of specific facts by way of affidavits, depositions, interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue for trial. See Fed. R. Civ. P. 56(c), (e); Baber, 977 F.2d at 875 (citing Celotex, 477 U.S. at 324)). Moreover, the nonmovant's proof must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data Gen. Corp., 12 F.3d 1310');">12 F.3d 1310, 1316 (4th Cir. 1993); DeLeon v. St. Joseph Hosp., Inc., 871 F.2d 1229');">871 F.2d 1229, 1223 n.7 (4th Cir. 1989).

         Coverage under the Workers' Compensation Act depends on the existence of an employment relationship. Edens v. Bellini, 863');">597 S.E.2d 863, 866, 359 S.C. 433 (S.C. Ct. App. 2004). Section 42-1-400 provides an exception to the general rule by imposing upon an owner or upstream employer liability for the payment of compensation benefits to worker who is not directly employed by the owner or upstream employer, depending upon the nature of the work performed. Id. The determination of whether a worker is considered a statutory employee is jurisdictional and is a question of law. See Carrier v. Westvaco Corp., 806 F.Supp. 1242, 1244 (D.S.C. 1992) (whether a plaintiff is a statutory employee is a question of subject matter jurisdiction); see also Lentine v. 3M Co., No. 6:08-2542, 2009 WL 792495, at *2 (D.S.C. Mar. 23, 2009) (citing Posey v. Proper Mold & Engineering, Inc., 1 S.E.2d 395');">661 S.E.2d 395, 8 S.C. 210');">378 S.C. 210 (S.C. Ct. App. 2008)). Notably, South Carolina policy warrants resolving jurisdictional doubts in favor of including employers and employees under the Act. Kemp v. JHM Enters., Inc., No. 6:14-cv ...

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