The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CLARENCE MITCHELL CIVIL ACTION
VERSUS
DIAMOND PLASTICS CORPORATION, NO.: 18-00919-BAJ-RLB
ET AL.
RULING AND ORDER
Before the Court is Defendant Plastics Extrusion Machinery, LLC’s Motion to
Dismiss (Doc. 69). Defendant requests the Court to dismiss Intervenors’ claims
against them pursuant to Federal Rules of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted. Intervenors did not oppose this motion. For
the reasons stated herein, Defendant’s Motion is DENIED.
I. BACKGROUND
A. Basis of the Lawsuit
This action arises from a malfunction of machinery resulting in the
dismemberment of Plaintiff’s right hand. Plaintiff was formerly employed as a belling
machine operator for Diamond Plastics Corporation (“Diamond”). (Doc. 39 at p. 3).
Plaintiff used the belling machine to cut and insert gaskets into PVC pipe. Plaintiff
alleges that prior to the incident on which this action is based, the belling machine
he operated shifted from its stationary position due to the vibrations from the
machine. Plaintiff alleges that HWEM, Inc. (“HWEM”) manufactured the machine.
(Id.) Plaintiff alleges that when the belling machine shifted, the cutting mechanism
failed, and the blade of the machine nearly fell on his hand. (Id. at p. 4). After this
incident, his supervisor tightened a bolt to hold the cutting mechanism in place. (Id.).
Plaintiff further alleges that he continued to complain about the blade dropping.
Plaintiff further alleges that the supervisor advised him that the machine needs a
guard on it and for Plaintiff to be careful because the machine could grab his arm
without the guard. (Id).
Plaintiff asserts that the belling machine continued to shift as a result of the
machine’s vibrations. Plaintiff further asserts that he continued to complain about
the malfunctioning of the belling machine, only to be told to continue to operate the
machine. On August 23, 2018, several minutes after Plaintiff’s supervisor last told
him to continue operating the machine as is, the cutting mechanism loosened, and
the belling machine sucked in Plaintiff’s right arm. The damage from this incident
caused Plaintiff to lose his right hand. (Id.).
B. Filing of Complaint and Intervention
Plaintiff filed a Complaint against several defendants. He sued Defendant
Plastics Extrusion Machinery, LLC (“PEM”) under successor and products liability
theories for the belling machine. Zurich American Insurance Co. and Automation
Personnel Services Inc. (“Automation”) filed a Petition of Intervention (Doc. 52),
alleging reimbursement claims against Plaintiff and all remaining Defendants.
Automation is a staffing company that provides employees to Plaintiff’s employer,
Diamond. Zurich American Insurance Co. is Automation’s worker compensation
insurance provider. Intervenors claim that they have paid Plaintiff’s worker’s
compensation benefits, medical expenses, and other expenses under the Louisiana
Workers’ Compensation Act. (Id. at p. 2). Intervenors also claim that they are entitled
to intervene for the reimbursement of all amounts paid to and/or on behalf of Plaintiff
out of any damages or recovery which may be awarded to Plaintiff against
Defendants. PEM filed the instant motion, seeking to dismiss the Intervenors’ claims
against them pursuant to Federal Rule of Civil Procedure 12(b)(6). PEM argues that
Intervenors are premature in requesting any compensation without a finding of
liability.
II. LEGAL STANDARD
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint against
the legal standard set forth in Rule 8, which requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To
survive a motion to dismiss, 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Determining whether a complaint states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. “[F]acial plausibility” exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly,
550 U.S. at 556). Hence, a complaint need not set out “detailed factual allegations,”
but something “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action” is required. Twombly, 550 U.S. at 555.
III. DISCUSSION
Intervenors have requested to be paid out of any judgment rendered in favor
of Plaintiff to reimburse them for the payments they made under Louisiana Workers’
Compensation law as a result of Plaintiff’s accident. Intervenors argue that by virtue
of the payments they made, they are subrogated legally or contractually to the claims
by Plaintiff against Defendants, to the extent of all amounts paid by them. (Doc. 52
at p. 3).
PEM asserts that Intervenors’ complaint is premature because Plaintiff has
not yet settled his workers’ compensation claim and PEM has not been found liable.
PEM argues that the Intervenors have failed to state a cause of action against them
for indemnity or subrogation and that Louisiana’s workers’ compensation laws are
inapplicable here because it never employed Plaintiff. (Doc. 69-1 at p. 5). PEM further
argues that since it is not an employer, it is not liable in solido with Plaintiff’s
employer under the statute; thus, the Intervenors’ claim for reimbursement against
them must be dismissed.
Under La R.S. 23:1101 et. seq, a workers’ compensation insurer has a right of
action against a third-party defendant for reimbursement. La R.S. 23:1101(B),
provides that any person having paid or having become obligated to pay compensation
may bring suit against a third person to recover any amount which he has paid. (Id.)
The Louisiana Supreme Court has interpreted workers’ compensation insurers to be
included within the term “any person having paid.” See Marquette Casualty Company
v. Brown, 103 So. 2d 269, 271 (La. 1958). Under La R.S. 23:1101(C), the term “third
person” includes any party who causes injury to an employee at the time of his
employment. When an employee files suit against a third person and notifies the
insurer of the suit, the insurer may then intervene as a party plaintiff in the suit. La
R.S. 23:1102(A). Houston General Ins. Co. v. Commercial Union Ins. Co., 682 So. 2d
1341, 1348 (La. App. 1 Cir. 11/8/96).
The Court finds that the Intervenors’ suit is not premature. Plaintiff amended
his complaint to name PEM as a defendant on June 20, 2019. Intervenors, after
receiving notice, filed their claim for reimbursement on September 30, 2019. In
accordance with La. R.S. 23:1102(A), Plaintiff first filed his suit, then notified
Intervenors, who then were permitted to intervene as party plaintiff. The statute does
not provide that an insurer must wait until liability is determined to intervene. Thus,
the Intervenors timely intervened in Plaintiff’s suit.
The Court further finds that the Intervenors’ suit for reimbursement is
sufficiently pleaded and applicable to PEM. PEM, as a defendant who could be found
liable under a successor or products liability theory, is a possible “third person” within
the meaning of La R.S. 23:1101(C). PEM, as an alleged manufacturer of the belling
machine that caused Plaintiff’s injury, could be found to have “caused an injury to
the employee at the time of his employment” according to the statute. In the event
that PEM is found not liable, the Intervenors’ claim will no longer remain against
them. Because the Intervenors have timely intervened with a claim for
reimbursement against a possible negligent “third person” in accordance with
Louisiana Workers’ Compensation law, the Intervenors have sufficiently pleaded
their claim.
IV. CONCLUSION
Accordingly,
IT IS ORDERED THAT Defendant’s Motion (Doc. 69) is DENIED.
Baton Rouge, Louisiana, this 20th day of July, 2020
______________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA