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Vann v. Eastman Chemical Company

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

May 20, 2019

Kevin R. Vann and Kelli D. Vann, Plaintiffs,
v.
Eastman Chemical Company and Mundy Maintenance Services and Operations, LLC, Defendants.

          ORDER AND OPINION

         Plaintiffs Kevin R. Vann and Kelli D. Vann (together “Plaintiffs”) filed this action alleging that Kevin Vann 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 on Mundy's Motion for Reconsideration (ECF No. 121) of the Order entered on October 23, 2018 (the “October Order”), denying Mundy's Motion to Dismiss (ECF No. 55). (ECF No. 112 at 17.) Plaintiff opposes Mundy's Motion asserting that the October Order “is well founded, comports with the facts of the case, appropriately applies established law, and did not ‘clearly err[]' in its holding.” (ECF No. 122 at 1.) For the reasons set forth below, the court GRANTS IN PART Mundy's Motion for Reconsideration and DISMISSES the claims against it.

         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. 59 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 2 ¶ 8-3 ¶ 10.) 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. ¶ 10.) “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. 59 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. 54 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.)

         After purchasing the Facility, DAK contracted with Mundy to “provide[] maintenance services at the site.” (ECF No. 78-2 at 126:19-20.) Mundy did not contract with Eastman nor was Mundy a party to the Operations Agreement and Services Agreement between Eastman and DAK. (Id. at 29:11-17, 126:4-12.) In this regard, there was no employment relationship between Mundy's employees and Eastman. (Id. at 29:18-30:21.)

         On December 3, 2016, employees of Mundy were asked “to heat a drain pipe [] near the [AC-11] Pump with a torch flame.” (ECF No. 55 at 3.) On December 6, 2016, Kevin Vann, along with DAK co-workers, Alton Ray Zeigler and Jacob S. Jackson, 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, “an explosion erupted shortly after Plaintiff Kevin Vann [] [, Zeigler, and Jackson] loosened bolts on the pump.” (ECF No. 59 at 6.) The explosion sprayed hot molten polymer throughout the workspace, injuring Vann and Jackson and killing Zeigler. (Id.)

         As a result of the foregoing, Plaintiffs filed an action in this court on April 19, 2017, alleging claims against Eastman for negligence, negligent failure to warn, and loss of consortium and against Mundy for negligence and loss of consortium. (ECF No. 1 at 8 ¶ 56-12 ¶ 77.) Additionally, Plaintiffs alleged that they are entitled to an award of punitive and exemplary damages. (Id. at 12 ¶ 78-13 ¶ 81.) After engaging in court-ordered jurisdictional discovery with Plaintiffs (see ECF No. 39 at 1 ¶ 2), Mundy filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction on November 30, 2017, asserting that its employees and Kevin Vann were “statutory employees” under the South Carolina Workers' Compensation Act (the “Act”), SC Code §§ 42-1-10 to -19-50 (2017), the “codified fellow servant doctrine” prevents the suit, and Plaintiff's exclusive remedy is under the Act. (ECF No. 55.) Thereafter, the court entered the October Order denying Mundy's Motion to Dismiss. (ECF No. 112.) On December 26, 2018, Mundy filed the instant Motion for Reconsideration. (ECF No. 121.)

         II. LEGAL STANDARD AND ANALYSIS

         In the October Order, the court made the following observations in denying Mundy's Motion to Dismiss (ECF No. 55) the claims alleged against it:

[T]here is no question that the fellow servant rule exempts Eastman and Mundy's employees from liability for Kevin Vann's injuries because they are all statutory co-employees of Eastman. However, it is less clear whether that exemption flows to Mundy because it did not have a statutory employment relationship Kevin Vann. Regarding this conundrum, the South Carolina Supreme Court has observed that “[t]o make out the case for the application of the fellow servant rule the injured person must, of course, have been a servant of the defendant.” Webster v. Atl. Coast Line R. Co., 61 S.E. 1080, 1085 (S.C. 1908). “It is a self- evident proposition that persons are not fellow servants within the rule exempting a master for liability to one servant for the negligence of another, unless they are in the employ or at least under the control of the same master.” Id. Upon its review, the court finds that the evidence presented regarding Mundy's relationship with Kevin Vann does not support a finding that Mundy should be exempted from liability pursuant to the fellow servant doctrine.
As to Mundy's assertion that Kevin Vann's injuries were caused by special employees of Eastman, the borrowed servant doctrine provides that “when a general employer lends an employee to a special employer, that special employer is liable for workers' compensation if: (1) there is a contract of hire between the employee and the special employer; (2) the work being done by the employee is essentially that of the special employer; and (3) the special employer has the right to control the details of the employee's work.” Cooke v. Palmetto Health All., 624 S.E.2d 439, 443 (S.C. Ct. App. 2005) (citing Eaddy v. A.J. Metler Hauling & Rigging Co., 325 S.E.2d 581, 582-83 (S.C. Ct. App. 1985)). Because Mundy did not contract with Eastman nor was Mundy a party to the Operations Agreement and Services Agreement between Eastman and DAK (see ECF No. 78-2 at 29:11- 17, 126:4-12), Mundy is unable to demonstrate that there was a “contract of hire” between its employees and Eastman, as the alleged special employer. Therefore, the court finds that Mundy is unable to satisfy all of the elements of the borrowed servant doctrine to exempt itself from liability in this action.

         (ECF No. 112 at 15-16.)

         Mundy seeks reconsideration of the October Order pursuant to Rule 54. (ECF No. 121 at 1.) Rule 54(b) provides the following:

When an action presents more than one claim for relief-whether as a claim, counterclaim, crossclaim, or third-party claim-or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or ...

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