United States District Court, D. South Carolina, Florence Division
KIMBERLY K. MATTHEWS, Individually and as Personal Representative of the Estate of JERRY L. MATTHEWS, Plaintiff,
E. I. DU PONT DE NEMOURS AND COMPANY, Defendants.
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
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=
Background and Procedural History
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. 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.
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]. 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].
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]. 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)].
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].
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].
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.
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)).
“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).
“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
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 ...